Volume 185 — South Western Reporter

<p>1. Obiminal Law <&wkey;1094,1101 — Appeal and Error — Statement op Facts and Bills op Exception — Necessity.</p> <p>On appeal from a conviction, where the statement of facts does not accompany the record, and no bills of exception were reserved, the judgment will be affirmed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. <§=» 1094, 1101.]</p> <p>2. Criminal Law &wkey;>1122(4) — Record on Appeal — Review op Instructions — Evidence Not Shown.</p> <p>The court cannot review the refusal of instructions in the absence of the evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2942; Dec. Dig. <&wkey;>1122(4).]</p>

<p>Criminal Law <S=>1095, 1102 —Appeal — Statement of Facts — Bills oe Exception-Time por Filing.</p> <p>Statement of facts and bills of exception in a misdemeanor case, filed after the expiration of 20 days after the adjournment of the court trying tie case, will be stricken on motion of the Attorney General.</p> <p>[Eld. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. <§=»1095, 1102.]</p>

<p>1. Criminal Law @=>1092(14) — Appeal—Exceptions — 'V ERIPICATIO N — N ECESSIT Y.</p> <p>Exceptions to the court’s charge in a criminal case should be verified in some way by the court.</p> <p>[Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 2836; Dec. Dig. @=>1092(14).]'</p> <p>2. Criminal Law @=>1090(1) — Appeal—Bills-op Exception — Necessity.</p> <p>Where the record contains no bills of exception, no ruling of the trial court is presented for review.</p> <p>[Ed. Note. — Eor other cases, see Criminal: Law, Cent. Dig. §§ 2653, 2805-2807, 2825-2827, 3204; Dee. Dig. @=>1090(1).]</p>

<p>1.Appeal and Ebboe <§=907(3) — Statement op Pacts — Necessity.</p> <p>Where the record contains no statement of facts, the findings of the trial court must be taken as true.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3673; Dec.‘Dig. §=907(3).]</p> <p>2. Sheriffs and Constables <S=>48 — Taxation <§==>691 — 'Tax Sales — Fees—Statute.</p> <p>Under Rev. St. 1911, art. 7691, prescribing to what fees the sheriff and district clerk shall be entitled for making sales of property in tax suits, no fee bills can be lawfully made in tax cases except as provided, the law being perfect and complete in itself.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. § 75; Dec. Dig. <§=>48; Taxation, Cent. Dig. § 1368; Dec. Dig. <§=> 691.]</p> <p>3. Taxation <§=840 — Recovery of Penalty, Interest and Costs of Delinquency Suit —Statute.</p> <p>Rev. St. 1911, art. 7699, gives incorporated cities and towns the power to institute suits for delinquent taxes “for the recovery of the taxes due on said property, together with penalty, interest, and costs of suit,” such penalty, interest, and costs being those provided by Acts 1897, of which article 7699 is section 16.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1656; Dec. Dig. <§=>840.]</p> <p>4. Taxation <§=302 — Excessive Levy — Invalidity. .</p> <p>An excessive levy for taxes is absolutely void, whether the excess is caused by including unlawful expenses, such as officers’ fees, with lawful taxes, or otherwise.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 496; Dec. Dig. §=>302.]</p> <p>5. Judgment <§=>486(1) — Collateral Attack.</p> <p>A void judgment may be attacked ih any proceeding by any one.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent.Dig. §§ 919-921, 923; Dec.Dig. <§=486(1).]</p> <p>6. Execution <§=>258 — Collateral Attack.</p> <p>Like a void judgment, a void execution sale can be collaterally attacked.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 736-739, 789; Dec. Dig. <§=> 258.]</p> <p>7. Taxation <§=>734(1) — Excessive Levy — Provision foe Return of Subplus — Statute.</p> <p>Under Rev. St. 1911, art. 7689, providing that after foreclosure of a tax lien an order of sale shall issue and the land be sold, and that, if any sum remains after payment of taxes, interest, penalties, and costs, it shall be paid by the sheriff to the clerk of the court out of which the execution or order of sale was issued, to be retained by him for two years, subject to the order of the court, and then paid to the state treasurer, who shall hold the sum in trust for the owner, the fact that a levy for taxes is excessive, through the sheriff and district clerk retaining unlawful fees out of the proceeds of the sale of the land, does not render the sale null and void.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1408, 1470, 1471; Dec. Dig. <§=> 734(1).]</p> <p>8. Taxation <§=734(10) — Sale—Attack fob Exaction of Illegal Fees — Statutes.</p> <p>Under Rev. St. 1911, art. 7689, providing for the return to the owner of an excess amount obtained from a tax sale, and article 7690, authorizing the sheriff after sale for taxes to make deeds to purchasers, which shall be held in any court of law and equity to vest good title in the purchaser, subject to impeachment only for actual fraud, where land was sold for delinquent taxes, and the sheriff and district clerk retained excessive fees from the amount received, the sheriff’s deed to the property could not be attacked for such excess in costs in trespass to try title by a third party claiming under the owner, since article 7689 renders any excess in the costs, of. sale illegally charged the owner a mere irregularity, while a sale under order issued under a valid judgment foreclosing a lien for taxes cannot be attacked for any irregularities under article 7690.</p> <p>[Ed. Note. — Eor other cases, see Taxation, Cent. Dig. §§ 1470, 1471; Dec. Dig. <§=> 734(10).]</p>

F. O’Neal, Judge. Action by Frank Marcofich against the- St. Louis, Brownsville & Mexico Railway Company and others. From a judgment for plaintiff, certain defendants appeal. January 23, 1914, appellee delivered 103-head of mules to appellant St. Louis, Brownsville & Mexico Railway Company to be transported by it and connecting lines from Brownsville to Texarkana.

<p>Appeal from District Court, Tarrant County.</p> <p>Actions by H. B. Herd against Rudolph S. Blome Company and another to review an assessment of benefits for street paving, and by Rudolph S. Blome Company and another against II. B. Herd to recover special assessments levied for the paving, were consolidated for trial. Judgment rendered for H. B. Herd, and the other parties appeal.</p>

<p>Appeal from Bowie County Court; Lee Tidwell, Judge.</p> <p>Action by J. R. Pugh against the Wells Fargo & Company Express. Judgment for plaintiff, and defendant appeals.</p> <p>Appellee and J. R. Shipp each brought to appellant’s agent at Nash, Tex., certain coops of chickens and turkeys, and cases of eggs and butter, to he shipped to Ft. Worth, Tex. A nonnegotiable receipt in the usual form was given by the agent to each of the shippers. The several shipments were consigned to C. H. Woodard, Ft. Worth, Tex. At the time of the delivery to the appellant’s agent each of the shippers informed said agent that the property shipped was theirs, and that C. H. Woodard did not own the same, but that C. H. Woodard had ordered the poultry and produce from them and had directed that a draft for the money be drawn on him through the bank .with the bill of lading or receipt attached thereto; that Woodard was not to get the shipments unless he paid the drafts, and that they were making the shipments that way, and directed that the shipments be not delivered to Woodard by the express company until said C. H. Woodard exhibited the express receipts so attached to the drafts. The shippers attached the express receipts given to them by the appellant’s agents to drafts on Woodard, and forwarded them at once through the bank to Ft. Worth by appellant before the drafts were paid by Woodard, and without the production by Woodard of the express receipts. J. R. Shipp assigned his claim to appellee, who brought the suit against appellant for damages. Judgment was rendered, on the verdict of the jury, in favor of appellee.</p>

Action by J. H. Beaty against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for defendants was affirmed. 175 S'. W. 450. Application for writ of error was denied in Supreme Court without opinion.

<p>• Appeal from District Court, Wichita County ; E. W. Nic-holson, Judge.</p> <p>Action by J. IT. Flesher against F. J. Clemenger and another. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Lamar County; A. P. Dehoney, Judge.</p> <p>Action by James W. Atkins against the Paris & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Judgment @=250 — Conformity to Pleadings.</p> <p>Where plaintiff sued on an express contract, no recovery on the quantum meruit can be had.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. @=250.]</p> <p>2. Monopolies @=17(2), 21 — What Constitute — Oonteacts in Restraint of Trade— “Trust.”</p> <p>Defendants entered into a contract to purchase patterns and fashion books from plaintiff, agreeing not to sell them at less than cata-logue prices, and not to deal in any other such publications. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7796, subds. 1, 2, 4, and Ej, define a “trust” as a combination of capital, skill, or acts by two or more persons, firms, or corporations to create, or which may tend to create, restrictions in trade or commerce, to fix, maintain, increase, or reduce the price of merchandise, to fix or maintain a standard price, or to make, enter into, maintain, execute, or carry out any contract binding persons to sell or to refrain from selling any goods. B.'eld, that the contract fell within such article, and so was unenforceable as creating a monopoly in restraint of trade.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. §§ 13, 15; Dec. Dig. @=17(2), 21.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Trust.]</p> <p>.3. Dismissal and Nonsuit @=75 — Form of Judgment.</p> <p>Where the contract on which action was based was illegal, judgment should be for defendants on the merits rather than one of dismissal.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 169; Dee. Dig. @^75.]</p> <p>4. Appeal and Error @=878(1) — Review-Necessity of Appeal.</p> <p>Errors in the judgment prejudicial to defendants who did not appeal will not be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3573, 3574; Dec. Dig. @= 878(1).]</p>

<p>Appeal from District Court, Denton County; C. F. Spencer, Judge.</p> <p>Action by Bertola Rodriquez against the Gulf, Colorado & Santa Fé Railway Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Bexar County ; W. P. Ezell, Judge.</p> <p>Action, by Otto Gerlach against the San Antonio Brewing Association. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Bumet County; James Flack, Special Judge.</p> <p>Suit by J. A. Noble against Eua Lacy Noble, in which Kate Lacy intervenes. From a judgment for defendant and intervener, plaintiff appeals.</p>

<p>1. Appeal and Ebbob <§=>664(4) — Statement op Facts — Oonclusiveness.</p> <p>A statement of facts properly certified is conclusive as to what evidence was introduced upon trial, and cannot be modified by any bill of exceptions.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 2859; Dec. Dig. ⅞⅜=664(4).]</p> <p>2. Stipulations <§=>14(12) — Eppect—Consent Deceee.</p> <p>Where defendants’ counsel admitted that after plaintiffs dismissed that portion of their action seeking to quiet title he stated that he could urge no objection to the entering of a judgment reviving a prior judgment of partition between plaintiffs and defendants, such statement was equivalent to an agreement that the original judgment should be revived.</p> <p>[Ed. Note. — For other eases, see Stipulations, Cent. Dig. §§ 36, 37; Dec. Dig. <§=>14(12).]</p> <p>3. Stipulations <§=>14(12) — Eppect.</p> <p>Where plaintiffs sought not only to quiet their title to land, but to revive a prior judgment of partition, an agreement by defendants’ counsel that such judgment should be revived was a confession of all the facts alleged with respect -to such judgment and relieved plaintiffs; no question of jurisdiction being raised from making any proof.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 36, 37; Dec. Dig. @=>14(12).]</p> <p>4. Appeal and Ereob <©=>235 — Waives or Ereobs — Necessary Parties.</p> <p>In an action to revive a judgment of partition, where one of the parties had transferred her interest and she was not made a defendant, and the others consented to the revival, defendants cannot on appeal object that the omitted party was necessary; Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1906, requiring a verified plea setting up the omission of parties.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1382, 1383; Dee. Dig. @=> 235.]</p> <p>5. Judgment @=870(8) — Revival—Construction oe Judgment.</p> <p>Where plaintiffs sued in trespass, to try title and to revive a judgment of partition, plaintiffs cannot, having dismissed that portion of their count in trespass to try title, contend that the revival of the judgment of partition under which they were awarded a writ of possession operated as an adjudication of their title; the dismissal of such count being a dismissal of the entire action in trespass to try title.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1630-1634; Dec. Dig. @=>870(8).]</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and Ebeob @=>882(3) — Review — Admissions.</p> <p>Where, in a suit to revive a judgment in partition, the jurisdiction in the original action was undisputed, and a defendant in suit to revive, who purchased pending partition, admitted that he had notice thereof when he purchased, said admission is binding on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3593, 3594; Dec. Dig. @=> SS2(S)J</p> <p>7. Judgment @=>870(8) — Effect of Revival —New Judgment.</p> <p>While Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5696, provides that a judgment in any court of record within the state where execution has not been issued within 12 months may be revived by scire facias or an action of debt brought with 10 years after date of judgment, and not thereafter, the revival of a judgment of partition is not an adjudication of the title of those to whom the land was partitioned, for save in an action of debt no new judgment can be granted, this being particularly where the parties in whose favor judgment was revived had dismissed that portion of their action in trespass to try title.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1630-1634; Dec. Dig. @=>870(8).]</p>

Junell, Judge. Action by J. S. Calfee against C. W. Bryant. Judgment for defendant, and plaintiff appeals. Appellee, a merchant at Como, Tex., bought certain jewelry of the National Novelty Import Company, a merchant at St. Louis, Mo., and accepted drafts drawn on him by that company for the amount of the purchase price thereof. The drafts were five in number, were dated January 24, 1914, and were for $59.20 each, payable to the order of the import company.

<p>Public Lands <©=173(22) — Lands of State —Illegal Fobfeituee — Statute of Limitation — “Pebson Claiming Right to Pub-chase ob Lease Public Fbee School Lands.”</p> <p>Under Rev. St. 1911, arts. 5458, 5459, providing that all persons claiming the right to purchase or lease any public free school lands, etc., which have been or may be sold or leased to any .other person, shall bring suit within a year after the award of such sale or lease, and not thereafter, and that if no suit has been instituted by any person claiming the right to purchase or lease within a year it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease have been complied with, a purchaser of public free school lands, who complied with the provisions of the law relative to occupancy and improvement, against whom the land commissioner forfeited the sale without warranty and illegally, could sue, in trespass to try title, the party to whom the commissioner subsequently awarded the lands, more than a year from the date of the award after the. forfeiture against him, not being' a “person claiming the right to purchase or léase public free school lands,” within the meaning of the statute.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 549; Dec. Dig. <©=173(22).]</p>

<p>1. Bastards ®=w102 — Property—Inheritance from Mother-Statute.</p> <p>Dnder Rev. St. 1911, art. 2473, giving an illegitimate child the right to inherit from its mother, and article 2469, providing for the descent of community property to the surviving husband or wife in the event that the deceased spouse left no descendants, an illegitimate child of a married woman, her only surviving issue, inherits Ms mother’s share of community property ; the provisions of the statute limiting the right of the husband to inherit the community property to those instances where the deceased wife leaves no child or children meaning any child capable of taking property by inheritance.</p> <p>[Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 254, 255; Dec. Dig. <⅜=3102.]</p> <p>2. Vendor and Purchaser <&wkey;244 — Bona Fide Purchaser — Inheritance—Notice oe Right — Sueeiciency oe Evidence.</p> <p>In suit for partition by the illegitimate son of a married woman against a purchaser from her husband, evidence that the purchaser had actual notice that plaintiff was’ the surviving child of the married woman and had an interest in the property in controversy held sufficient to support judgment for plaintiff.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. <&wkey;>244.]</p> <p>3. Appeal and Error &wkey;>739 — Assignment oe Error — Multieariousness.</p> <p>An assignment of error that the court erred in charging on innocent purchaser in good faith and in. refusing to give three special charges presenting three different phases of the question was improper as multifarious.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3634^-3036; Dee. Dig. &wkey;> 739.]</p> <p>4. Appeal and Error &wkey;>742(7) — Assignment oe Error — Presentation.</p> <p>An assignment of error consisting of a copy of the motion for new trial, not being labeled “assignment of error” in the brief, and the motion being copied at length without any proposition or statement, could not be considered, not being presented in accordance with the rules for Courts of Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Doc. Dig. <&wkey;>742(7).]</p>

<p>Appeal from District Court, Cherokee County; L. D. Guinn, Judge.</p> <p>Action by Joe M. Pressler against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Principal and Agent 3=3123(7) — Relation — Sufficiency of Evidence.</p> <p>Evidence in a buyer’s suit for profits lost by defendant’s refusal to deliver a quantity of bran according to its contract, held to show that the seller’s agent was authorized to bind him by the contract of sale.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 426; Dec. Dig. <§=>123(7).]</p> <p>2. Appeal and Error <§=>1057(1) — Admission of Evidence — Verdict.</p> <p>In such suit, error, if any; in overruling an objection to the answers of the agent on the ground that bis written contract of employment was the best evidence, and that the alleged agen-' ey could not bo established by bis statements after the termination of his employment, was harmless, in view of the evidence establishing his authority to bind the defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4196; Dec. Dig. <§=> 1057(1).]</p> <p>3. Appeal and Error <§=683 — Showing of Error.</p> <p>In the absence of any record showing of the facts alleged as a basis of an objection to depositions, the appellate court cannot say that the court erred in its ruling.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2907; Dec. Dig. <§=>683.]</p> <p>4. Appeal and Error <§=>1057(1) — Harmless Error — Admission of Hearsay.</p> <p>In a suit for damages for defendant’s breach of its contract to sell and deliver bran to plaintiff, error, if any, in overruling an objection to the testimony of the plaintiff and the broker as to the sale on the ground that it was hearsay, and that the telegrams, letters, etc., were the best evidence of the transaction, was harmless, where those documents were put in evidence and established the contract of sale.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4196; Dec. Dig. <§=> 1057(1).]</p> <p>5. Ajppeal and Error <§=>1067 — Harmless Error — Refusal of Instructions.</p> <p>In such suit, the refusal to instruct on issues not controverted under the evidence was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <§¿>1067’; Trial, Cent. Dig. § 475.]</p> <p>6. Appeal and Error <§=>1064(1) — Harmless Error — Instruction on Damages.</p> <p>In a suit for damages from a breach of a contract to sell and deliver bran, where the record showed that plaintiff purchased it at the market price, an instruction that the damage was the difference between the market value of bran during the time for delivery and the contract price was not objectionable on the ground that the correct measure of damages was the difference between the contract price and the price actually paid.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. <§=>1064(1); Trial, Cent. Dig. § 553.]</p> <p>7. Appeal and Error <§=>1151(2) — Review-Amount of Recovery.</p> <p>In such suit, where the pleadings alleged aggregate losses to the amount of $975, a verdict and judgment allowing for loss of profits in the sum of $1,000 would be reformed and reduced to the amount of recovei’y claimed.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4498-4500, 4503-4505; Dec. Dig. <§=>1151(2).]</p>

<p>1. Appeal and Error <©=> 101(1) — Orders Ap-pealable — Counts' Court — Appointment of. Receiver.</p> <p>In the absence of statute, no appeal lies to the Court of Civil Appeals from an interlocutory order of the county court appointing a. receiver; Rev. St. 1911, § 2079, authorizing an. appeal from an interlocutory order of the district court appointing a receiver or trustee in any cause, not applying.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 681-685; Dec. Dig. 101(1).]</p> <p>2. Appeal and Error <g=»l — Right op Appeal-Statutory Authority.</p> <p>No right of appeal exists in a particular-case, unless conferred by statute.</p> <p>[Ed. Note. — For other cases, see Appeal andi Error, Cent. Dig. §§ 1 — 4; Dee. Dig. <¿=>1.]</p>

<p>Appeal from Gray County Court; Siler Faulkner, Judge.</p> <p>Action by E. M. Wallace against Alex Schneider and wife. From a judgment for defendants, plaintiff appeals.</p>

W. Nicholson, Judge. Action by W. L. Griffith against the Sap Antonio Life Insurance Company. Judgment for plaintiff for part of the amount sued for, and defendant appeals, and plaintiff files a cross-appeal.

Action by J. R. Beggs & Co. against the Hudgins Produce Company. Judgment for the plaintiff, and defendant appeals. In October, 1913, appellees, wholesale dealers at St. Paul, Minn., sold a carload of potatoes to Sanders Bros., through the Gaines-Ramage Company, brokers at Texarkana, Tex. The potatoes were consigned to appel-lees’ order with instructions to the carrier to notify Sanders Bros, when same reached Texarkana.

<p>1. CORPORATIONS &wkey;>503(l) — ACTIONS FOR Breach of Contract — Venue.</p> <p>Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 1830, § 5, providing that where a person has contracted in writing to perform an obligation in any particular county suit, may be brought either in such county or where the defendant has his domicile, and section 24, providing that suit against any private corporation may be commenced in any county in which the cause of action, or a part thereof, arose, or in which the corporation has an agency or representative, or in which its principal office is situated, a corporation cannot be sued in a county in which it had never had any agent or representative, except traveling men, for breach of a written contract of sale made in the county in which the corporation had its domicile, office, and principal place of business, and which contract provided that the goods should be delivered on board cars outside the state and all payments should be made in the county of the corporation’s residence.</p> <p>[Ed. Note. — For other cases, see Gorporations, Cent. Dig. §§ 1935, 1937-1939, 1942; Dec. Dig. &wkey;503(l).]</p> <p>2. Contracts <&wkey;127(4) — Fixing Place of Trial — Validity.</p> <p>A stipulation in a contract of sale fixing a venue o.f any suit growing out of it is valid.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 612; Dec. Dig. <S=»127(4).]</p>

<p>1. CARRIERS <&wkey;209 — CARRIAGE OF ANIMALS— Cabs — ‘ ‘Clean’ ’ — ‘ ‘Disinfected’ ’ — ‘ ‘ Cleaned and Disinfected.”</p> <p>Under rule 31 of the State Live Stock Sanitary Commission, declaring that all cars for the loading of hogs shall be thoroughly cleaned and disinfected, the term “clean,” in view of the use of the word “disinfected,” does not necessarily mean that the cars shall be free from all dirt, but that they shall be free from infection; the word “clean” being susceptible of many meanings, among them, free from defilement, while the term “disinfected” means free from injurious or contagious diseases.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 925; Dec. Dig. <§=>209.</p> <p>For other definitions, see Words and Phrases, Second Series, Clean.]</p> <p>2. Evidence <&wkey;54 — Presumption on Presumption.</p> <p>Presumption cannot be based on presumption to make out a case.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 74; Dec. Dig. <&wkey;54.]</p> <p>3. Carriers <&wkey;228(l) — Carriage of Live Stock — Actions—Burden of Proof.</p> <p>In an action to recover the value of hogs which died of cholera during shipment, plaintiff, having averred that the cars furnished were not clean as required by rule 31 of the State Sanitary Stock Commission, has the burden of proving that allegation.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957, 958; Dec. Dig. &wkey;22S(l).]</p> <p>4. Carriers &wkey;>228(5) — Carriage of Live Stock — Actions—Evidence.</p> <p>In an action where it was contended that because of unclean cars furnished, contrary to rule 31 of the State Sanitary Live Stock Commission, hogs contracted cholera, evidence held insufficient to show that the cars furnished were infected.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. &wkey;228(5).]</p> <p>5. Appeal and Error &wkey;>688(2) — Exceptions, Bill of — Necessity.</p> <p>Assignments complaining of improper argument of counsel cannot be reviewed, where the argument was not shown by bills of exception or the record</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2896; Dec. Dig. <&wkey;>688(2).]</p>

P. Dehoney, Judge. Suit by J. B. Campbell against the Paris & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. This was a suit by appellee for damages for personal injuries which he claimed he suffered because of negligence on the part of employés of appellant. Appellee was a passenger, destined to Arthur City, Lamar county, on one of appellant’s trains.

Porter, Judge. Action by Cora P. Whitmore against L. J. Harrell and W. N. Orand, with cross-action by defendant Orand against his code-fendant. Judgment for plaintiff against both defendants, and judgment for defendant Orand against his codefendant, and defendant Orand appeals. By a deed dated August 17, 1910, Mose Novich conveyed tw’o tracts of land in Hill county to L. J. Harrell. Each of the tracts was described by its metes and bounds.

Error from District Court, Fannin County; Ben H. Denton, Judge. Proceedings by W. S. Bristow to probate-the will of Margaret A. Bristow, deceased. To review a judgment probating the will, William Burchett brings error.

<p>Error from District Court, Lamar County; A. P. Dolioney, Judge.</p> <p>Action by the Tyler Box & Lumber Manufacturing Company against City National Bank of Paris, Tex., and T. J. Record. Judgment for defendant bank, and the plaintiff brings error.</p> <p>Plaintiff in error, the Tyler Box & Lumber Manufacturing Company, which will be called the “Tyler Company,” was engaged in the business of manufacturing and selling egg cases, etc., at Tyler, Tex. The Paris Box & Manufacturing Company was engaged in the same business at Paris, Tex. In 1911 the last-mentioned company became bankrupt and its manufacturing plant sold by the trustee in bankruptcy to the defendant in error, the City National Bank of Paris, one of its creditors. Thereafterwards the bank, of which defendant in error Record was president, in the name “Paris Box & Lumber Company,” carried on the business of manufacturing egg eases, etc., for the purpose of recouxiing, its loss as a creditor of the bankrupt concern. July 17, 1913, the Tyler Company and the bank, in said name of Paris Box & Lumber Company, entered into a contract as follows:</p> <p>“Paris, Texas, July 17, 1913.</p> <p>“This is a contract between the Paris Box & Lumber Co. of Paris, Texas, and the Tyler Box & Lumber Co. of rByler, Texas, hereinafter referred to as the Paris Co. and the Tyler Co. respectively.</p> <p>“The Paris Company hereby purchases from the Tyler Company all the cottonwood veneer cut by it for the season of 1913 and 1914, for the price of five and one-half (5-½) cents per set of one top, one bottom and two sides, f. o. b. ears the factory of the Paris Co. and of the dimensions suitable for standard egg cases; veneers cut sufficiently long and wide to allow cutting off and ripping.</p> <p>“The Paris Co; agrees to pay for same at above price within ten days from date of receipt of invoice and bill lading less 2% after deducting freight from said price.</p> <p>“The Tyler Company hereby sells to the Paris Co. all the cottonwood veneer cut by it for the period from this date to the first day of August, 1914, for the price of five and one-half (5-½) cents per set. At least one hundred thousand sets must be delivered by November 1, 1913, and one hundred thousand sets by the 15th day of March, 1914. Said veneer to be cut from live cottonwood of such dimensions and so that by ripping one side and equalizing the ends they will make one piece sides and tops, and at least two-thirds of bottoms one piece, balance of bottoms may be two pieces.</p> <p>“The Tyler Company will turn its orders for egg cases to the Paris Company and will assist it in selling to the trade.</p> <p>“Signed by the Paris Box & Manufacturing Co., per W. J. Reed, Mgr., and T. J. Record; and by the Tyler Box & Lumber Co., per B. C. Anderson.”</p> <p>The suit was by the Tyler Company against the bank and Record for damages it claimed it suffered because of a breach by them, it alleged, of the contract, in that they refused to receive when tendered, and pay for, veneer cut by it during the life of the contract, as they had agreed to do. The bank and Record claimed that the contract sued upon was modified by an agreement made in February, 1914, and that they had complied with it as so modified. The fifth paragraph of the answer of the bank and Record, and a part of the sixth paragraph, which sets up the modification 'of the contract as claimed by them, are as follows:</p> <p>“Defendants admit the making of the contract set out by plaintiff in paragraph 15 of its petition; but they say that at the time said contract was entered into, it was contemplated and understood by the parties making same that the Paris Box Factory would not be obligated to take more cottonwood veneer than would be necessary to manufacture such egg cases that could be sold to the trade within the time specified in said contract; that the contract, as written, by its terms obligates defendants to take all the cotton veneer cut by plaintiff for the season 1913 and 1914, but, as above alleged, it was fully understood and agreed that the Tyler concern would not cut, or expect the Paris Box Factory to take, any more stuff than would be necessary, as above stated, to supply the demand for egg cases.</p> <p>“The defendants further say that up to the 28th day of February, A. D. 1914, the Tyler Box Factory had shipped to the Paris Box Factory large amounts of veneer to be used in the manufacture of egg cases which had been received by the Paris Box Factory and paid for according to the terms of the contract; that on or about said 28th day of February a representative of the Tyler Box Factory, having full authority to represent it in its business with the Paris Box Factory, came to the city of Paris, and he and the representative of the Paris Box Factory made and agreed on a settlement of its business relations up to said date, including a settlement of accounts for the period ending July IT, 1913; that the attention of the agent and representative of the Tyler Box Factory was called at the time to the contract set out by plaintiff, in which the Paris Box Factory had agreed to take all the cottonwood veneer cut by the Tyler Box Factory for the season of 1913 and 1914, and such representative and agent then stated that it was not contemplated by the parties to the contract that the Paris Box Factory should take more than sufficient for its needs, and that the Tyler Box Factory did not expect the Paris Box Factory to take more than it could find a market for. T. J. Record, representing the box factory, again called his attention to the wording of the contract, whereupon it was agreed that that part of the contract which obligated the Paris Box Factory to take all the cottonwood veneer cut by it for the season of 1913 and 1914 should be abrogated and rescinded, and that thereafter the contract should be that the Paris Box Factory should take all the veneer f-rom Tyler Box Factory that it could use in its business for the season and no more.”</p> <p>The testimony offered on behalf of the bank and Record was sufficient to support a finding that the contract was changed as alleged by them.</p> <p>Because the Tyler Company failed to prove that Record had any connection with the contract sued upon, except as agent of the bank, the trial court instructed the jury to find in his favor. With reference to the controversy, so far as it was between the Tyler Company and the bank, the court instructed the jury to find in favor of the former, unless they believed the contract sued upon was “modified by an oral agreement made subsequent to” its date, and to find for the bank if they believed—</p> <p>“that on or about February 28, 1914, John M. Wright, representing the plaintiff the Tyler Box & Lumber Manufacturing Company, made a verbal agreement with T. J. Record, representing the defendant, City National Bank of Paris, Tex., by the terms of which, the provisions of the written contract aforesaid, requiring the Paris Box & Lumber Company to take the entire output of veneer for egg cases of the plaintiff’s factory for the season of 1913 and -1914, should be abrogated and rescinded, and that thereafter the contract should be that the Paris Box Company should take all the veneer from the Tyler Box Company that it could use in its business for said season, and no more, and that thereafter said Paris Box & Lumber Company did take from the plaintiff all such veneer that it could use in its said business, for said season.”</p> <p>The jury found in favor of the bank; judgment that the Tyler Company take nothing by its suit was rendered.</p>

<p>1. Appeal and Ekkor <©=>512—Record on Appeal—Showing as to Jurisdiction-Sufficiency.</p> <p>Where the sum in controversy in the county court was $159, the transcript must show that the cause was first appealed from a justice court, and, if it fails to make such showing, the appellant should be given further time to perfect the record, but, if the record is not perfected, the appeal must be dismissed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2326; Dec. Dig. <©=>512.]</p> <p>2. Appeal and Error <§=>659(1)—Record-Failure to Show Jurisdiction—Certio-rari.</p> <p>Certiorari is not the proper method to perfect a record on appeal which fails to show jurisdiction of the county court.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2834, 2835, 2837-2839; Dee. Dig. <©=>659(1).]</p> <p>3. Appeal and Error <©=^627(2)—Perfection op Appeal—Time.</p> <p>An appeal will be dismissed where brought on pauper’s oath after the filing of which the transcript was not filed for more than 90 days.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2747, 2749, 3126; Dec. Dig. <S=>627(2).]</p> <p>4. Appeal and Error <©=>508—Record on Appeal—Sufficiency.</p> <p>Where appeal is taken on a pauper’s oath and the record fails to show that proof thereunder was made by the county judge while the court was in session, the appeal will be dismissed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2316; Dec. Dig. <©=>508.]</p> <p>5. Appeal and Error <©=>389(3)—Pauper’s Oath—Power op Judge.</p> <p>Where attempt is made to perfect appeal after the term at which judgment is rendered, the pauper’s oath must be made before the judge of the county court wherein the appellant resides, and, if the court trying the cáse is in session, proof must be made before the court and not the judge.</p> <p>[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. § 2075; Dec. Dig. <¡£=>389(3).]</p> <p>6. Appeal and Error <©=>508—Record—Pau-per’s Oath—Suppiciency.</p> <p>Where appeal is taken on a pauper’s oath and the record fails to indicate that it was presented to the judge on the bench while holding session, it is insufficient, and the appeal will be dismissed for failure to show that the proof was made to the court.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2316;. Dec. Dig. <©=>508.]</p> <p>7. Appeal and Error <©=>937 (4)—Presump-tions—Pauper’s Oath—Sufficiency.</p> <p>Where, at the time affidavit of inability to pay costs was made, motion for new trial was pending and no notice of appeal had been given, it must be presumed that the affidavit was presented to the trial judge off the bench and certified to by him.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3792; Dec. Dig. <©=>937(4).]</p>

Blanton, Judge. Proceeding by the Southwestern Telegraph & Telephone Company against the Abilene Independent Telephone & Telegraph Company for the appointment of a receiver of defendant’s property to pay its indebtedness. From an interlocutory order appointing a temporary receiver, and from an order continuing the appointment, the defendant appeals.

<p>Eminent Domain <§=>307(4) — Damases—Ver-dict.</p> <p>In a suit by owner of property injured by a railroad, a jury may not fix the value of the property, immediately after the wrong complained of, at a less sum than given by any witness.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 824; Dec. Dig. <§=>307(4).]</p>

<p>Appeal from District Court, El Paso County ; Ballard Ooldwell, Judge.</p> <p>Action by William S. Starnes against the Rio Grande, El Paso & Santa Pé Railway Company. Prom judgment for the plaintiff, defendant appeals.</p>

W. Taylor, Judge. Suit for injunction by the State of Texas, through J. E. Leslie, District Attorney, upon the relation of John Ball and others, against L. Cadena and others, the Board of Trustees of the Benavides Independent School District, and E. Caballero and another, Managers of Election.

<p>Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.</p> <p>Action, by I. A. Hodges and others against the Swastika Oil Company.</p>

<p>1. Garnishment <§=>92 — Institution ox Suit.</p> <p>Where an affidavit for a distress warrant against defendant was made July 2, 1914, and a statutory bond was executed on the same day, the suit was thereby commenced, so that an application for a writ of garnishment filed the following day would not be quashed on the ground that no suit had been instituted when it was applied for.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 170-173; Dec. Dig. <§=>92.]</p> <p>2. Garnishment <§=>87 — Affidavit for Writ —“Agent.”</p> <p>In an action by a partnership, an application for a writ of garnishment signed by the partnership and by the members thereof by a manager was duly signed by an “agent” for the partnership.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 156-169, 163-166; Dec. Dig. <§=> 87.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Agent.]</p> <p>3. Appeal and Error <§=>71(2) — Final Judgment.</p> <p>In a suit for supplies furnished, with a distress warrant against defendant, a garnishment proceeding against a third person was a separate and distinct suit from the original suit, and the court’s action in quashing the garnishment proceeding was a final judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 389-392; Dec. Dig. <§=» 71(2).]</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by Rene Perry and another against the Fire Association of Philadelphia. Judgment for plaintiffs, and defendant appeals.</p>

Error from District Court, Galveston County; Robt. G. Street, Judge. Suit for divorce by Viola Sutfin against Earnest Sutfin in which a writ of sequestration was issued, and D. A. Coward replevied property sequestered. There was a judgment for plaintiff against the claimant, and claimant brings error.

Umphres, Judge. Garnishment proceedings by Foos Gas Engine Company against Fairview Land & Cattle Company and others. From a judgment of the court fixing the amount due from garnishee at an amount less than the preferred claims, plaintiff appeals.

<p>Appeal from Hemphill County Court; J. L. Jennings, Judge.</p> <p>Action by W. A. Palmer against A. C. Over-shiner. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from Maverick County Court; Ben Y. King, Judge.</p> <p>Action by Thomas C. Gonzales against Jesus Santos Mendiola. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Tbial <&wkey;350(6)~Special Issues — Ultimate Facts.</p> <p>In a suit for damages resulting from a collision between defendant’s street car and plaintiff’s cart, where the special issue as to whether the proximate cause of the collision was due to the car running into the cart or to the horse backing_ the cart into the car was submitted to the jury, being an evidentiary question bearing on the ultimate fact of negligence, neither the issue nor its answer was material.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 830; Dec. Dig. &wkey;350(6)J</p> <p>2. Damages <&wkey;220> — Vebdict — Sueeiciency.</p> <p>The jury’s finding, “We believe the plaintiff entitled to $150,” was a sufficient finding assessing the plaintiff’s damages at $150 for the items enumerated in the issue.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 563-566; Dec. Dig. <&wkey;>220.j</p> <p>3. Tbial <&wkey;388(l) — Finding op Fact--Juey Tbial.</p> <p>The court properly refused to make- a finding of fact when there was jury trying the case, whose province and duty it was to pass upon such issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 908; Dec. Dig. <&wkey;>388(l).]</p>

<p>1. Sajuss <&wkey;359(l) — Action for Price — Sufficiency of Evidence.</p> <p>Evidence, in an action for the purchase price of two-thirds of plaintiffs’ wheat crop taken by defendant on his promise to pay, held to sustain a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1056, 1057; Dec. Dig. &wkey;359(l).]</p> <p>2. Frauds, Statute of i&wkey;33(l) — Promise to Answer for Debt of Another — Originad Promise.</p> <p>Where defendant took from plaintiffs one-third of the wheat they had agreed to pay for police protection, and also took the remaining two-thirds, and shipped it to a flour mill, and took the flour and promised to pay for it, but failed to do so on request, the promise was not within the statute of frauds, as there was no debt proven against the one to whom police protection was paid, and since, if there had been an original debt from such person to plaintiff, defendant’s promise would not be affected by the statute.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 50; Dee. Dig. <!&wkey;33(l).3</p> <p>3. Courts <&wkey;7 — Jurisdiction — Person and Subject-Matter.</p> <p>In an action to recover on a promise to pay for wheat raised in the republic of Mexico and taken from plaintiffs where defendant appeared in court, the Texas courts had jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. &wkey;7.1</p> <p>4. Sales <&wkey;358(l)—Evidence,</p> <p>In an action to recover on defendant’s promise to pay for wheat taken from plaintiff, ground, and delivered to defendant, a_ letter from the mill company, corresponding with the date of the conversion and identified by the writer, the manager of the mill, showing the number of the car consigned to defendant, and a letter signed by defendant, acknowledging receipt of the mill’s letter, and showing that defendant had sent the wheat in a certain numbered car to the mill, and acquiescing in the results, were material and relevant.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1049, 1054; Dec. Dig. &wkey;35S(l)J</p> <p>5. Sales &wkey;353(l)—Sufficiency oe Petition.</p> <p>A petition, alleging that plaintiffs raised and owned a quantity of wheat, one-third of which they had agreed to pay for police protection, that defendant took that third, and also the remaining two-thirds, of the reasonable value of $337, and had the wheat shipped to a flour mill, and ground and took the flour, and promised to pay for it, and failed to do so, though requested, was sufficient.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 995, 997, 999; Dec. Dig. &wkey;353(l).]</p>

<p>Appeal from District Court, Harris County ; - John A. Reed, Judge.</p> <p>Action by Peter Lee against the Houston Belt & Terminal Railway Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by the First National Bank of Galveston against John O. Underwood. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Guadalupe County Court; J. B. Williams, Judge.</p> <p>Action by W. C. Thomas against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Brazoria County; Samuel J. Styles, Judge.</p> <p>Suit by Elmer P. Stockwell against Charles W. Melbern and another. To review a judgment for the named defendant on his cross-bill, plaintiff brings error.</p>

<p>Appeal from Frio County Court; S. T. Dowe, Judge.</p> <p>Action by J. W. Sinks against Mrs. E. R. Glasscock and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Trial ©=>260(1) — Instructions — Repetition.</p> <p>A requested special charge need not be given; its substance being embraced in the general charge and in another special requested charge given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. ©=>260(1).]</p> <p>2. Negligence ©=>117 — Contributory Negligence-Necessity oe Pleading.</p> <p>Plaintiff’s contributory negligence in failing to call in a consulting physician must be pleaded to entitle defendant to have an instruction submitting the question.</p> <p>[Ed. Note. — For other cases see Negligence, Cent. Dig. §§ 195-197; Dec. Dig. ©=>117.]</p> <p>3. Negligence ©=>136(26) — Contributory Negligence — Evidence.</p> <p>Evidence merely that plaintiff disregarded the suggestion of her attending physician to call a consulting physician is insufficient to raise the issue of contributory negligence, in the absence of evidence that a different result would have followed had this been done.</p> <p>[Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 286, 333-335, 338, 339, 342-345, 353; Dec. Dig. ©=>136(26).]</p> <p>4. Appeal and Error ©=>1064(1) — Harmless Error — Instructions.</p> <p>Where there can be no question but that, if defendant’s omission was negligence, and brought on plaintiff’s condition, it was the direct a.nd responsible cause, and the important question is whether it was a cause thereof, any failure of an instruction to observe the distinctions between proximate and remote causes is unimportant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dee. Dig. ©=>1064(1); Trial, Cent. Dig. §§ 475, 525.]</p> <p>5. Negligence ©=>140 — Instructions—Proximate.</p> <p>In the instruction, “The ‘proximate cause’ of an injury * * * means an efficient cause, or that which in natural and' continuous sequence unbroken by any new or intervening cause produces the injury,” the words commencing with “or” are explanatory of what precedes, rather than a different definition of proximate cause.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 378-381; Dec. Dig. ©=>140.]</p> <p>6. Damages ©=>132(3) — Personal Injury — Excessive Verdict.</p> <p>Under evidence that, as a result of exposure to cold on defendant’s train, plaintiff’s facial nerves had become totally paralyzed; her mouth drawn to one side; she was unable to close her lips, so that in eating her food would sometimes escape; she was suffering from a mastoid abscess, to cure which would require a dangerous operation; her injuries were permanent; and she had suffered considerable pain — a verdict for $4,500 cannot be said to he excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 374; Dec. Dig. ©=>132(3).]</p>

<p>Appeal from District Court, Sabine County ; A. E. Davis, Judge.</p> <p>Suit by Mrs. Ida Harris against A. D. Hamilton and others, in which II. B. Short and others were impleaded by the original defendants. From the judgment, the plaintiff and interveners appeal.</p>

<p>1. Carriers <§=>318(3) — Injury to Passenger—Eviden oe .</p> <p>The implied finding in a verdict in a passenger’s action, that it rained on plaintiff through a broken or open window in defendant’s car, held not against the great weight and preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307, 1308; Dec. Dig. @=>318(3).]</p> <p>2. Carriers <§=>320(30) — Injury to Passenger — Question for Jury — Cause.</p> <p>Evidence, in a passenger’s action, held sufficient to go to the jury on the question of her ailment being caused by being rained on in defendant’s car, and not being a mere continuation of a prior condition, or caused by being rained on elsewhere.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1248; Dec. Dig. @=>320(30).]</p> <p>3. Damages <§=>132(5) — Personal Injury-</p> <p>Excessive Verdict.</p> <p>Under the evidence in a passenger’s action for derangement of her menstruation from being rained on in defendant’s car, held, that a verdict of $S,000 could not be said to be excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 376; Dec. Dig. <§=>132(5).]</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by A. W. Childress and others against George W. Crow. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.</p> <p>Suit for injunction by the Xydias Amusement Company and others against the City of Houston and others. From an order dissolving the temporary restraining order and denying the injunction, plaintiffs appeal.</p>

<p>1. Intoxicating Liquors <®=32(1) — Local Option Election — Jurisdiction to Order-Petition.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5715, authorizing the commissioners’ court, whenever deeming it expedient,_ to order a local option election, and requiring it to do so when petitioned by 250 voters of the county, if it does so because of a petition only, the petition must be signed by the required number of legal voters of the county to give the court jurisdiction to make the order.</p> <p>[Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 38; Dec. Dig. <§=32(1).]</p> <p>2. Intoxicating Liquors <§=37 — Local Option Election — Contest—Extent op Inquiry.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5728, giving the court jurisdiction in a local option election contest, “to try and determine all matters connected with said election, including the petition of such election and all proceedings and orders relating thereto,” it is its duty, on proper pleadings, to inquire into the qualification of the signers of the petition bn which the election was ordered.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. @=»37.]</p>

Umphres, Judge. Garnishment proceedings by L. Anthony against H. T. McGee, in which W. S. Roberts intervened. From a judgment for plaintiff against the garnishee, the intervener appeals.

<p>Error from Harris County Court; C. C. Wren, Judge.</p> <p>Suit by W. H. Coylé & Co. against Jacob C. Baldwin. Judgment for the plaintiff, and defendant brings error.</p>

<p>1. Carriers <§=>347(10) — Carriage or PASSENGERS— CONTRIBUTORY NEGLIGENCE — WHAT Constitutes.</p> <p>Eor a passenger on a street car, after giving a signal to stop, to w.alk to the rear entrance and stand upon the steps while the car was moving slowly, does not constitute contributory negligence as a matter of law, precluding recovery, where, through a sudden jolt, the passenger was thrown from the car.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1355, 1356, 1386, 1402; Dec. Dig. <§=3347(10).]</p> <p>2. Trial <§=>253(4) — Carriage oe Passengers — Actions—Instructions.</p> <p>A passenger on a street car claimed that, having given the signal to stop, he repaired to the rear entrance and stood on the step waiting for car to stop, and was thrown from the car by sudden jerk. The court charged that if the passenger left a place of safety while the car was moving and before it had stopped, proceeding to the step, and, though both hands were incumbered,. attempted to alight before the car stopped, then if an ordinarily prudent person would not have so acted, his act was negligence which would bar recovery regardless of any other negligence. Held that, as the court nowhere submitted the case whether the operatives of the car were negligent in causing it to suddenly jerk and throw him from the step, the charge was erroneous, as taking from the jury the case of negligence charged.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613, 616; Dee. Dig. <§=>253(4).]</p> <p>3. Trial <§=>252(8) — Instructions—Evidence.</p> <p>In a personal injury action, where the evidence showed that the swelling and discoloration of plaintiff’s scrotum existed before any infection was caused by scratching, a charge that plaintiff could not recover if the injury was caused by infection from scratching an ulcer, was not warranted by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. <§=>252(8).]</p>

<p>Appeal from Bee County Court; T. M. Cox, Judge.</p> <p>Action by W. C. Brown and another against H. R. Miehalke. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Nueces County ; Jas. A. Graham, Special Judge.</p> <p>Action by J. E. Kjellberg against the Corpus Christi Street & Interurban Railway Company. Judgment for plaintiff and defendant appeals.</p>

<p>Criminal Law <©=>1099(10) — Appeal and Error1 — Review.</p> <p>Where the record contained no bills of exception, no statement of facts, and a transcript of the evidence was not signed by the attorneys nor approved by the trial judge, there was no question presented for review on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2873; Dec. Dig. <©=>1099(10).]</p>

<p>1. Evidence &wkey;>197 — Identification of Documents — Admissibility.</p> <p>Where the original petition bearing the signatures of attorneys is not in evidence, the attorneys’ signatures thereto cannot be considered as evidence that they are the same persons who wrote a letter notifying the defendant of the death of the plaintiff’s intestate.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 681, 681⅜>; Dee. Dig. &wkey;197.]</p> <p>2. Appeal and Error <&wkey;832(l) — Disposition of Cause — Rehearing—Grounds.</p> <p>Although the court was in error in finding that the evidence showed without controversy that the defendant insurer received and retained the dues of the insured, it was no ground for rehearing where the insurer’s local collector testified that he received the dues in time and that the same were forwarded to the home office, and plaintiff introduced a receipt for the dues duly signed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3218, 3220, 3223-3225; Dec. Dig. &wkey;832(l).]</p>

<p>Appeal from Atascosa County Court; Walter E. Jones, Judge.</p> <p>Suit by George M. Martin against the Jourdanton Mercantile Company. Judgment for defendant, and plaintiff appeals.</p>

D. Howe, Special Judge. Action by A. L. Thornton and wife against R. L. Daniel and others. Judgment for defendants on a directed verdict, and plaintiffs appeal.

D. Harvey, Judge. Suit by Ed. F. Pickering and others, composing the Board of School Trustees of Common School District No. 25 of Harris County, against the Houston National Exchange Bank and others. From a judgment for plaintiffs, the named defendant and another appeal.

<p>1. Damages <&wkey;113 — Personal Property.</p> <p>When personal property is damaged or partially destroyed, or impaired in value, the measure of damages is ordinarily the difference between its value before the injury and immediately thereafter, together with any reasonable expenses incurred and the value of any time spent in reasonable efforts to preserve or restore the property.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 90, 91, 279, 280; Dec. Dig. &wkey;</p> <p>2. Damages <&wkey;113 — Personal Property.</p> <p>The fundamental and controlling principle as to damages allowable for injury to personal property is that the injured party shall have actual pecuniary compensation for the injury received, so that he may be placed as near as may be in the condition which he would have occupied but for the injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 90, 91, 279, 280; Dec. Dig. &wkey; 113.]</p> <p>3. Carriers <&wkey;>135 — Carriage oe Goods — Damages.</p> <p>In a suit for damages to $1,000 bushels of shipped corn, it is error to allow recovery of damages, although actually suffered, of 18½ cents on every bushel, where plaintiff admitted that after the shipment his customer accepted and paid for 367½ bushels at the full price agreed, although the customer claimed damages, but plaintiff does not state the amount or whether it was paid.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 603½-604⅛; Dec. Dig. <&wkey;>135.]</p> <p>4. Judgment <&wkey;256(l) — On Trial — Coneormity to Verdict.</p> <p>The verdict of the jury on all issues of fact constitutes the sole basis for the judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446, 454; Dec. Dig. &wkey;j256(l).j</p> <p>5. Judgment <&wkey;256(7) — On Trial —Conformity to Verdict — Interest.</p> <p>It is error to award 'a successful suitor interest upon the amount of his recovery where the issue of interest was not submitted to or determined by the jury.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 453; Dec. Dig. <&wkey;>256(7).]</p> <p>6. Appeal and Error <&wkey;185(l) — Jurisdiction — Necessity of Objecting in Lower Court to Jurisdiction.</p> <p>Jurisdiction of county court may be made an issue for the first time on appeal in the Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1168,1170-1176; Dec. Dig. <&wkey;185(l).]</p> <p>7. Justices oe the Peace &wkey;> 141(4) — Appellate Jurisdiction oe County Court.</p> <p>The appellate jurisdiction of the. county-court cannot exceed in amount the jurisdiction of the justice court in appeals from the latter.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 473; Dee. Dig. 141(4).]</p> <p>8. Dama&es <&wkey;68 — Interest.</p> <p>In a suit for damages to personal property, interest is not recoverable eo nomine, but as damages.</p> <p>[Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 141-143; Dec. Dig. &wkey;68.]</p> <p>9. Courts <&wkey;169(4) — Limited Jurisdiction— Amount Involved.</p> <p>Where interest from the time of accrual is claimed as damages, to ascertain whether the amount sued for does not exceed the jurisdiction of the trial court there must be added to the amount sued for the interest calculated to the time of filing the pleading.</p> <p>[Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 419, 420, 429-436; Dec. Dig. &wkey; 169(4).]</p> <p>10. Justices oe the Peace <&wkey;188(3) — County Court’s Appellate Jurisdiction.</p> <p>Where a case was removed from justice court to county court for trial de novo, and there the petition was amended and recovery of an amount and interest thereon which totaled $214.88 was asked, held the county court was without jurisdiction .to render a judgment for any amount over $200.</p> <p>[Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig. § 724; Dec. Dig. <&wkey;> 188(3).]</p> <p>11. Evidence <&wkey;552 — Examination oe Experts — PI ypothetical Questions.</p> <p>If witnesses as to difference in market value of corn before and after the injury are experts, they may give their opinions upon hypothetical questions.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2368; Dec. Dig. &wkey;552.]</p>

<p>Appeal from District Court, Freestone County; A. M. Blackman, Judge.</p> <p>Garnishment proceedings by E. G. Setzer against the Farmers’ & Merchants’ State Bank of Teague. From a judgment for plaintiff, defendant appeals.</p>

<p>Error from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by R. W. .Marple and another against J. Y. Grubbs and others. Judgment for plaintiffs, and defendant Grubbs brings error.</p>

<p>Appeal from District Court, Jefferson County; John M. Conley, Judge.</p> <p>Suit for partition by Clara E. Gilliland and ■others against the Port Arthur Canal and Dock Company and others. The defendant Datham Davis was dismissed on his disclaimer. The defendant Wm. A. Lawson and others filed a cross-bill against defend•ant, Canal & Dock Company, and from that part of the judgment in its favor, cross-petitioners Wm. A. Lawson and others appeal.</p>

<p>Appeal from Dallas County 'Court; T. A. Work, Judge.</p> <p>Action by John T. Hoskins against the Federal life Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

Action by the San Antonio Life Insurance Company against L. T. Adams and another. Judgment against defendant Adams and for defendant Southland Life Insurance Company and order overruling motion for new trial,. and Adams appeals.

<p>1. Appeal and Eeror <§=o760(l) — Assignments OP ERROR — BRIEFS— SUFFICIENCY.</p> <p>Assignments of error urged on appeal identical with the grounds assigned in the motion for a new trial, where the bills of exception relied on though not copied in the brief, were referred to and the pages of the transcript where they may be found were given, were sufficiently supported by a reference to the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig'. § 3095; Dec. Dig. <&wkey;760(l).]</p> <p>2. Insurance <&wkey;623(4-) — Action on Policy-Denial oe Liability — Time to Sue.</p> <p>Where an insurer absolutely denied its liability on an accident policy, the beginning of on action without regard to the provisions of the policy relating to the time in which suit might be brought thereon was authorized.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1551; Dee. Dig. i&wkey;>623(4).]</p> <p>3. Insurance <&wkey;146(3) — Construction of Contracts.</p> <p>A contract of insurance should be construed most favorably to the insured, and where its language is fairly susceptible of any construction making the insurer responsible for the loss or injury, it is the duty of the court to so construe it, though the court cannot undertake to make a new contract in disregard of the plain and unambiguous language used by the parties.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 295; Dec. Dig. <S&wkey;146(3).]</p> <p>4. Insurance <&wkey;466 — Accident Insurance —Construction .</p> <p>Under an accident policy stipulating that for total disability the insurer would make certain weekly payments, and that if during, the period of such disability and within 90 days from the accident the injury should directly, independently, and exclusively of all other causes result in permanent paralysis, the insurer would pay the principal sum, where insured, when injured by a fall, was suffering from a disease contributing to his paralysis, such paralysis was not the direct, independent, and exclusive result of the fall, though it hastened the paralysis, so as to entitle the insured to a recovery.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1178, 1186; Dec. Dig. &wkey;466.J</p> <p>5. Appeal and Ereor <&wkey;882(12) — Party Entitled to Allege Error — Invited Ereor.</p> <p>Defendant, in an action on an accident policy, was not deprived of the right to complain of error in a charge substantially the same as a charge requested by and- given for it after its correct charge had been refused.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3692; Dec. Dig. <&wkey;> 882(12).]</p> <p>6. Insurance &wkey;>668(ll) — Accident Insurance-Issue.</p> <p>In an action on a policy of accident insurance to recover for paralysis alleged to have resulted from an accident or fall, where the evidence tended to show that other diseases caused the paralysis, defendant was entitled to have the issue as to whether such diseases caused the paralysis submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1745, 1763, 1764; Dec. Dig. <&wkey;> 668(11).]</p> <p>7. Insurance i&wkey;466 — Accident Insurance —Liability.</p> <p>Where arterio sclerosis and Bright’s disease, with which insured was suffering, caused a stroke of paralysis consequent upon his falling, or where the injury received by him in his fall and such diseases concurred in causing the paralysis, the insurer was not liable, but if the injury alone caused the paralysis within 90 days, from the accident “directly, independently, and exclusively of all other causes,” as provided by the policy, the insurer was liable.</p> <p>[Ed. Note — For other cases, see Insurance, Cent. Dig. §§ 1178, 1186; Dec. Dig. t&wkey;466.]</p>

<p>Appeal from District Court, Dallas County; Jas. P. Haven, Judge.</p> <p>Suit by H. I. Gahagan against W. I. Kana-man. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Taxation @=>789(1) — Tax Sales — Evidence of Title.</p> <p>In trespass to try title by a purchaser from one buying at a tax sale, the judgment, order of sale, and the sheriff’s deed in the tax suit, which was against unknown owners, were admissible in evidence against defendants, not parties to the tax suit, as muniments of title to establish the fact that the grantee had acquired the title of the unknown owner.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1566; Dee. Dig. @=>789(1).]</p> <p>2. Evidence @=>340(3) — Codies of Records— Statute.</p> <p>Under Rev. St. 1911, art. 3694, making certified copies of the records of all public officers and courts of the state admissible as evidence where the records themselves would be admissible, in trespass to try title by one claiming under a purchaser at a tax sale, certified copies of orders of the probate court in the administration of a decedent’s estate were admissible in evidence in rebuttal of defendants’ claim of title under power -of attorney of persons claiming to be decedent’s heirs.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 1297; Dee. Dig. @=>340(3).]</p> <p>3. Judgment @>=712 — Taxation @=>641 — Tax Suit — Judgment — Binding Force — Adverse Possessor.</p> <p>Unless a party’s title by limitation to land has been fully perfected before bringing of a tax suit against unknown owners, he is not a necessary party to the suit, under his claim of title by limitation, and judgment in the suit binds him as well as all other persons, though he is not served with notice.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1233; Dec. Dig. @=>712; Taxation, Cent. Dig. § 1304; Dec. Dig. @=>641.]</p> <p>4. Estoppel @=>71 — Tax Titles — Estoppel of Occupant — Disclaimer.</p> <p>Where the occupant of lands delinquent for taxes went to the county attorney and told him that, if he would not make him a party to the tax suit, as he owned no interest thez-ein, but would sue simply unknown owners, he, the occupant, would buy in the land at the sale under the judgment, which the attorney did, such occupant was estopped from asserting any title by limitation in himself against one claiming under the purchaser at the tax sale.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 173-182; Dec. Dig. @=>71.]</p>

<p>Appeal from District Court, Pecos County; W. C. Douglas, Judge.</p> <p>Action by John M. Odom against the Kansas City, Mexico & Orient Railway Company of Texas and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Railroads <§=>398(1) — Injuries Near Track— Sufficiency oe Evidence.</p> <p>In an action for personal injuries received while walking along a street 'beside a railroad track, evidence held sufficient to support a finding of the jury in favor of the allegation of the plaintiff’s petition that some object, the nature of which was unknown to the plaintiff, projected over the side of a car and struck him.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1363; Dec. Dig. <§=>39S(1).]</p> <p>2. Railroads <§=>398(1) — Injuries Near Track — Sufficiency oe Evidence.</p> <p>In an action for personal injuries received while walking along a street beside a railroad track, evidence held sufficient to support a jury finding that the plaintiff was struck while walking clear of the cars.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent Dig. §§ 1356, 1363; Dec. Dig. <§=>398(1).]</p> <p>3. Railroads <§=>400(10) — Injuries Near Track — Question eor Jury.</p> <p>In an action for personal injuries received while walking along a street beside a railroad track, the plaintiff being safe, except for a projecting object on one of the cars, whether he was guilty of negligence held for the jury under the evidence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1377; Dec. Dig. <§=>400(10).]</p> <p>4. Railroads <§=>396(1) — Injuries Near . Track — Contributory Negligence — Presumption.</p> <p>In an action for personal injuries received while walking along a street beside a railroad track, there being no contention that the plaintiff was on the track, or in any sense a trespasser, but was traveling along a well-traveled trail, there could be no presumption of negligence on his part because he did not walk elsewhere.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1341-1343; Dec. Dig. <§=>396(1).]</p> <p>5. Railroads <§=>398(1) — Injuries Near Track — Sufficiency oe Evidence.</p> <p>In an action for personal injuries received while walking along a street beside a railroad track, evidence held sufficient to support a jury finding that the defendant railroad was guilty of negligence in propelling its car along the street, so loaded that an object projected therefrom in such manner as to strike a person passing along where the company and its servants were charged with knowledge that persons were likely to be.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1363; Dec. Dig. <§=>398(1).]</p>

<p>Appeal from District Court, Robertson County; J. C. Scott, Judge.</p> <p>Action by the Houston & Texas Central Railroad Company against W. T. Montgomery, with plea in reconvention. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Appeal ard Error <&wkey;387(3) — Petition and Bond — Ellin a Before Issuance of Citation — Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2089-2090, governing the.bond and citation in error, the petition for writ of error and the bond for costs must be filed before issuance of the citation.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064, 2066, 2067; Dec. Dig. &wkey;387(3).]</p> <p>2. Appeal and Error <&wkey;396 — Issuance of Citation — Service—Necessity.</p> <p>Until citation issues for defendant in error and service thereof is had, the case is improperly filed in a Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2099, 2102, 2104, 2150; Dec. Dig. &wkey;>396.]</p> <p>3. Appeal and Error &wkey;>382 — Error Bond —Amount.</p> <p>A writ of error bond should be double the amount of the probable costs as fixed by the clerk.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. -Dig. §§ 2036-2041; Dec. Dig. <&wkey;> 382.]</p> <p>4. Appeal and Error <&wkey;390 — Writ of Error Bond — Amendment—Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1609, providing that when there is a defect of substance or form in any writ of error bond, on motion to dismiss the same for such defect the court may allow it to be amended by filing a new bond, a writ of error bond, in the amount of probable costs, as fixed by the clerk, instead of double the amount, can be amended.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2077-2088; Dec. Dig. <&wkey;> 390.]</p> <p>5. Appeal and Error <&wkey;436 — Petition for Writ of Error and Bond — Time for Filing.</p> <p>The filing of a petition for writ of error and an error bond gave the Court of Appeals jurisdiction, where the petition and bond were filed in one year from the date of the judgment, whether together or not.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2191, 2192; Dee. Dig. &wkey; 436.]</p> <p>6. Appeal and Error <&wkey;422 — Striking Ap-peai>-Defective Citation in Error.</p> <p>Where citation in error and service thereof were defective because citation issued before filing of the error bond, the Court of Appeals is authorized to strike the appeal from its docket.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2149; Dec. Dig. <&wkey;>422.]</p>

<p>1. Evidence <&wkey;317(l) — Hearsay — Statements oe Persons Not Parties — Prejudice.</p> <p>In an action by the assignee of a contract for the delivery of cotton seed for damages for the nondelivery of a load which he had sold to a third party, where defendant pleaded an arrangement with one K. to deliver the load to plaintiff and that K. had delivered the load, and a special agreement with plaintiff’s agent that plaintiff would furnish cars for the load, that plaintiff was. notified through his agent that K. would deliver for defendant on a certain day, that plaintiff’s agent agreed to notify plaintiff and have cars ready for loading, and that plaintiff was to notify K. when he would receive the load, the testimony of K. that he told another party that plaintiff was to call him up and state what day he would set out the cars for the seed and such party’s testimony as to the same conversation, at which it was not shown that plaintiff was present, and which was contradicted by plaintiff’s agent, was hearsay and inadmissible.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 1174; Dec. Dig. &wkey;317(l).]</p> <p>2. Appeal and Error &wkey;>1050(l) — Harmless Error — Admission of Hearsay.</p> <p>The admission of such evidence, relating to a material issue, was prejudicial error, requiring a reversal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 106S, 1069, 4153, 4157; Dec. Dig. &wkey;1050(l)J</p> <p>3. New Trial <&wkey;150(3) — Motion — Sufficiency.</p> <p>A motion for a new trial on the ground of newly discovered evidence, not accompanied by the affidavit of the witness stating what his testimony would be, was insufficient.</p> <p>[Ed. Note. — Eor other cases, see New Trial, Cent. Dig. § 309; Dec. Dig. &wkey;150(3).]</p>

<p>1. Vendos and Purchases <&wkey;266(9) — 'Vendor's Lien Notes — Primary Security — Agreement Between Subsequent Vendor and Purchaser.</p> <p>All the land sold, with a retention of a vendor’s lien for the unpaid purchase money, remains primary security for the debt, and none of it becomes a mere surety, as to the holder and owner of the vendor’s lien notes, in the absence of consent by such holder and owner to change in such respect, notwithstanding subsequent conveyances of parts of lands, and agreements between the subsequent vendors and purchasers ; so that extension of time of payment of the notes given by the holder thereof to G., who had bought some of the lots, assuming payment of the notes, did not release those lots which G. had conveyed to N., by warranty deed, without any assumption 'by N. of payments of the notes, though N. had no notice of and did not consent to the extension.</p> <p>[Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. §§ 713, 726; Dee. Dig. &wkey;266(9).]</p> <p>On Motion for Rehearing.</p> <p>2. Vendos and Purchases <&wkey;280(2) — Vendor’s Lien Note — Release oe Purchaser —Extension to Subsequent Purchaser-Pleading and Prooe.</p> <p>It is error not to render judgment against the maker of a vendor’s note, sued thereon, on the ground that he was released by an extension of time to Ms grantee, who had assumed payment, he not having pleaded or given evidence that the extension was without his consent or notice to him.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 786-788; Dec. Dig. &wkey;280(2).]</p> <p>3. Vendor and Purchaser <s=266(9) — Vendor’s Lien Notes — Extension to ¡Remote Grantee — Release oe Intermediate Grantees.</p> <p>ii/xtension of time on a vendor s hen note to a remote grantee of the land, who had assumed its payment, though without notice to or consent of intermediate grantees, who had also assumed payment thereof, did not release them, the holder of the note not knowing of their relation thereto, and not being charged with notice from record of their deeds.</p> <p>[Ed. Note. — Por other cases, see Vendor and Purchaser, Cent. Dig. § 726; Dec. Dig. <&wkey;</p> <p>bUBROGATION <&wkey;14(4) — PURCHASER OE Land Subject to Vendor’s Lien.</p> <p>If. a Mt be subjected to payment of a vendor s lien in the hands of one who has bought it free therefrom, he is entitled to subrogation against those personally liable for the debt.</p> <p>[Ed. Note — For other cases, see Subrogation, Cent. Dig. § 39; Dec. Dig. &wkey;14(4).]</p>

<p>1. Waters and Water Courses <&wkey;>171(2)— Injuries bv Flowage — Floods.</p> <p>A railroad is liable for flooding lands, though extraordinary and unprecedented floods concur with the road’s negligence in the construction and maintenance of its embankment in causing the damage.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 218; Dec. Dig. <&wkey;</p> <p>2. Appeal and Error <&wkey;1010(l) — Review —Questions oe Fact.</p> <p>Questions of fact on which the trial court found against appellant with support in the testimony are determined for purposes of an appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 397943981; Dec. Dig. &wkey;> 1010(1).]</p> <p>3. Evidence <s&wkey;324(l) — Hearsay—Past History of River.</p> <p>In an action against a railroad for damage to plaintiff’s land from floods caused by embankments retarding flood W'aters of a river, hearsay testimony concerning former floods reputed to have been greater than those involved in the case was admissible to show the past history of the stream.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1218, 1221-1229; Dec. Dig. &wkey; 324(1).]</p>

<p>Appeal from Comanche County Court; J. H. McMillan, Judge.</p> <p>Action by C. M. Albin against the Ft. Worth & Rio Grande Railway Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. Warehousemen <®=»3 — Statutory Regulations — “Public Warehouseman.”</p> <p>Under the warehouse act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7819-7827) the fact that one is a public warehouseman within the ordinary meaning of those terms is not sufficient to invest him with the character and rights and charged with the duties and responsibilities incident to public warehousemen and warehouses defined in the act. '</p> <p>[Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. § 4; Dec. Dig. <g^>3.</p> <p>For other definitions, see Words and Phrases, First Series, Public Warehouseman.]</p> <p>2. Warehousemen <®=>16 — Receipts—Negotiability.</p> <p>A lender receiving, as security for'his loan, cotton warehouse receipts, not knowing of a prior mortgage on the cotton, cannot on nonpayment of the loan hold the warehouseman, liable for the amount thereof, although the warehouseman is a public warehouseman and the receipts are not indorsed “nonneg'otiable” or “not a public warehouse receipt,” where the warehouseman is not operating under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7819-7827, the public warehouse act, and the receipts show that they are not in the form prescribed- by that act.</p> <p>[Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. § 35; Dec. Dig. <@=j16.]</p>

<p>Appeal from Jones County Court; J. F. Lindsey, Judge.</p> <p>Action by W. L. Boyd against J. H. Gray-son. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. Public Lands <&wkey;173(21) — Lands of State — Forfeiture—Conflicting Claims— Evidence — Statute.</p> <p>In trespass to try title by a party to whom the Commissioner of the General Land Office sold the land in suit after declaring forfeiture against the original buyer, the suit being against the purchaser from1 the original buyer, defendant had the right to prove facts showing that the alleged forfeiture of the original buyer’s title was illegal and void, since if the purchase was not subject to forfeiture the second buyer from the land commissioner acquired no rights, while if the forfeiture was legal, Rev. St. 1911, arts. 545S, 5459, limiting the time within which persons claiming the right to purchase free school lands may sue therefor to one year, cut off defendant’s right to attack plaintiff’s purchase.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. § 549; Dec. Dig. &wkey;173(21).]</p> <p>2. Public Lands <&wkey;173(21) .— Lands of State — Substitution of Buyer — Forfeiture.</p> <p>The failure of a substitute purchaser of public free school lands to deposit with the proper officer his obligation to pay the purchase money in lieu of the obligation of his vendor, as re-quired by statute, does not operate ipso facto as a forfeiture of the title.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. § 549; Dee. Dig. &wkey;^ 173(21).]</p>

N. Denton, Judge. Action by Ragsdale, Price & Co. against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, and from an order overruling a motion for new trial, defendant appeals.

<p>Appeal from Hardeman County Court; D. E. Magee, Judge.</p> <p>Suit by J. J. Perkins and another against the International & Great Northern Railway Company and others. From a judgment against the named defendant, it appeals.</p>

<p>1. Trial <§=192— Instructions — Assuming Pacts.</p> <p>It is not error for a court in its charge to assume the existence of facts as to which evidence is uncontroverted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 43ÍU434; Dec. Dig. <§=192.]</p> <p>2. Fbaud <§=11(1) — Representations—Matters oe Fact oe Opinion.</p> <p>A statement that land sold is as good as surrounding land, when in fact the maker of the statement knows a large part of it is a depression in which water stands after rains, cannot be deemed a statement of opinion, but is a statement of fact.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. D-g. § 12; Dec. Dig. <§=11(1).]</p> <p>3. Fraud <§=11(1) — Statement Knowingly False.</p> <p>When a person makes a statement in the form of an opinion and knows of facts which make the opinion a sham and a fraud, he really makes a misrepresentation of fact.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 12; Dee. Dig. <§=11(1).]</p> <p>4. Vendor and Purchaser <§=37(1) — -Duty to Investigate.</p> <p>Where a person has been induced to enter into a contract by false representations, it is no defense to his claim to be relieved of it that he was lacking in wariness or caution in 'believing the representations.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 54; Dec. Dig. <§=37(1).]</p> <p>5. Appeal and Error <§=1002 — Verdict on Conflicting Evidence.</p> <p>A verdict based on conflicting evidence will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. <§= 1002.]</p>

<p>Appeal from District Court, Coleman County; John W. Goodwin, Judge.</p> <p>Action by the Coleman National Bank against G. C. Cathey and others. From judgment for plaintiff, plaintiff and defendant Upton Plenderson appeal.</p>

<p>1. Appeal and Erp,or <§=675 — Mattebs Not Shown by the Record.</p> <p>An order made in May, overruling appellant’s plea of privilege, will not be reviewed, where the only pleadings shown by the record are the first amended original petition filed in July, and those filed afterwards, and the only evidence before the court on appeal is that introduced upon the trial of the case in July.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 2875; Dec. Dig. <§=675.]</p> <p>2. Trial <§=350(4) — Submission of Issues.</p> <p>In an action by a buyer for nondelivery, he claiming that he was not obliged to pay until after delivery, and the seller claiming that payment was to be made by demand draft before delivery, held error to refuse to submit special issues as to the terms of the contract in this respect and whether the buyer complied therewith.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 829; Dec. Dig. §=350(4).]</p> <p>3. Appeal and Error <§=1062(2) — Harmless Error — Error Cubed by Subsequent Instruction.</p> <p>Such error is not cured by submitting an issue whether the defendant failed or refused to deliver according to the terms of the contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. <§= 1062(2).]</p> <p>4. Sales <§=174 — Excuse por Nondelivery-Default by Buyer.</p> <p>A seller is not bound to deliver to the buyer if the latter has himself breached his agreement by refusing to pay for the goods pn demand.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 434; Dec. Dig. §=174.]</p>

B. Minor, Judge. Action by Raymond Leary against the International Coal & Wood Company and others. From an interlocutory order refusing to appoint a receiver and denying a temporary injunction, plaintiff appeals.

<p>1. Contracts <§=»88 — Written Contracts— Consideration.</p> <p>A written contract, by statute, imports a consideration.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 403 — 405, 407; Dec. Dig. 88.]</p> <p>2. Appeal and Error <3=^901 — Beview — Findings oe Trial Court.</p> <p>One attacking the findings of the trial court has the burden of affirmatively establishing error on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1771, 3670; Dec. Dig. <§=» 901.]</p> <p>3. Brokers <g=>71 — Commissions—Bight to.</p> <p>Where a vendor refused to enter into a contract for the sale of lands at a price less than listed, until the broker had agreed not to demand commissions unless the sale was consummated, imd it was contemplated by the parties that the contract between the purchaser and vendor should not be binding until reduced to writing, the broker was not at that time entitled to commissions and so his agreement to demand a commission only in event of a consummated sale was supported by a consideration.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. <⅜=>71.]</p> <p>4. Brokers <§^>54 — Commissions—Bight to.</p> <p>Unless a broker produces a purchaser ready, willing, and able to buy on the terms offered, he is not entitled to commissions.</p> <p>[Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. <®=>54.]</p> <p>5. Brokers <©=v>61(1) — Commissions — Agreements.</p> <p>While a broker who procures a purchaser ready, able, and willing to buy is ordinarily entitled to commissions where the sale fails because of defects in the vendor’s title, a broker who agreed to demand no commissions unless the sale was actually consummated is entitled to none where the sale was not made because the purchasers refused to buy on account of defects in the vendor’s title.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 77, 7.8, 92; Dec. Dig. <®=*61(1)J</p>

Error from Runnels County Court; M. Kle-berg, Judge. Action by R. A. Dickinson against Will Parrish, in which the First State Bank of Blackwell was garnished. From an order quashing the writ of garnishment, plaintiff brings error.

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Suit by the Western Automatic Music Company against Mrs. Julia Fisher and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Aransas County; F. G. Chambliss, Judge.</p> <p>Action by F. A. Strong and wife against Minnie Harwell. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Grayson County Court; Dayton B. Steed, Judge.</p> <p>Action by J. L. Drake against Dr. J. F. Baker, in which W. B. Olds became a party defendant. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Parmer County; D. B; Hill, Judge.</p> <p>Action by A. A. Hogan against the First National Bank of Hereford. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Suit by Blrs. Cora Heard and another against the Royal Neighbors of America. Judgment for the plaintiffs, and defendant brings error.</p>

F. Mullally, Judge. Application for writ of mandamus by W. D. Rankin and others against E. W. Noel, county commissioner, and others. From a judgment refusing the writ, plaintiffs appeal.

W. McBride, Judge. Suit by the Texas Hide & Wool Company against H. P. Edwards and another. Judgment in justice’s court, for plaintiff against defendant Edwards and for Edwards against his codefendant, Bishop, was reversed on appeal, and plaintiff appeals.

<p>Appeal from Dallas County Court of Law; T. A. Works, Judge.</p> <p>Action by the Houston County Óil Mill & Manufacturing Company against the San Angelo Cotton Oil Company and another. From a judgment for plaintiff, the defendant named appeals.</p>

B. Hill, Judge. Action by R. N. Mounts against J. P. Burch and J. H. Bowers. Judgment for plaintiff against defendant Bowers for the principal due on a note, foreclosing a chattel mortgage on cattle against both defendants, with execution against defendant Burch for the sum recovered for conversion of the cattle, and defendant Burch appeals.

<p>1. Bills and Notes &wkey;>430 — Payment <&wkey;16 (1) — Extinguishment of Note or Debt by Promissory Note.</p> <p>The giving of a promissory note for an antecedent debt or note will not extinguish the latter unless the parties so intend.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1251-1256; Dee. Dig. <&wkey;> 430; Payment, Cent. Dig. § 63; Dec. Dig. &wkey;> 16(1).]</p> <p>2. Principal and Surety <&wkey;159 — Notes— Discharge by Renewal — Burden of Proof.</p> <p>In an action against the surety on a note, it was incumbent on the defendant to prove the defensive matter that it was agreed between his principal and the payee that a second note, executed by his principal, was given to and accepted by the payee in discharge of the original note.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 428-435; Dec. Dig. &wkey;> 159.]</p> <p>3. Bills and Notes <&wkey;499 — Discharge by Renewal — Presumption.</p> <p>Where the principal maker of a note executed a renewal, but the original note was not delivered to him in exchange, there is a presumption that it was not the intention of the parties to discharge the original note by delivery to the payee of the new note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1682, 1695-1697; Dec. Dig. &wkey;?499.]</p> <p>4. Principal and Surety <&wkey;128(2) — Surety on Note — Extensions of Note — Discharge —Consent.</p> <p>A surety on a note who agrees in the body of the note to extensions of time for payment, is not discharged by extensions without his consent.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 359-362; Dec. Dig. &wkey;> 128(2).]</p> <p>5. Principal and Surety <&wkey;105(l) — Surety on Note — Discharge by Extension— Binding Agreement — Necessity.</p> <p>The mere giving of time to the principal maker of a note without a binding agreement to that effect which postpones the right of action or injures the surety will not discharge the latter.</p> <p>[Ed. Note. — For other eases, see Principal and Surety, Cent. Dig, §§ 196, 201, 203-210'; Dec. Dig. <&wkey;10S(l)J .</p> <p>6. Appeal and Error <&wkey;1068(3, 5) — Harmless Error.</p> <p>In an action on a note, where the trial court would have been justified in instructing a verdict for plaintiff, assignments urging errors in the charge and in refusing charges requested by defendant cannot present reversible error.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4227; Dec. Dig. <&wkey;>1068 (3, 5); Trial, Cent. Dig. §§ 475, 480, 525, 553.]</p>

<p>1. Negligence <&wkey; 121(5) — Proximate Cause —Showing by Ciboumstantial Evidence— Pbesumptions.</p> <p>Proximate cause may be shown by circumstantial evidence, but cannot be presumed.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 228; Dec. Dig. &wkey;>121(5).]</p> <p>2. Master and Servant &wkey;>276(2) — Injuries to Servant — Manner oe Death — Sueni-ciency oe Evidence.</p> <p>In suit against a railroad company for death of its yard clerk, evidence held to reasonably. show that decedent did not fall from the train which killed him while riding thereon, or under it while trying to get on the engine.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959; Dec. Dig. <&wkey;> 276(2).]</p> <p>3. Master and Servant <&wkey;276 (5) — Injuries to Servant — Cause oe Death — Suneicien-cy oe Evidence.</p> <p>In an action against a railroad company for the death of its yard clerk, evidence held, insufficient to show causal connection between the road’s failure to have a light on its engine and the death of the clerk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959; Dec. Dig. <&wkey;> 276(5).]</p> <p>4. Trial <&wkey;252(8) — Instructions — Submission oe Special Issue.</p> <p>In an action against a railroad company for death of its yard clerk, the submission of the issue of failure to keep a lookout was erroneous, where the evidence did not show causal connection between such failure and the accident.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dee. Dig. &wkey;252(8).]</p> <p>5. Appeal and Error <&wkey;10C2(l) — Harmless Error — Submission oe Issues.</p> <p>Error in submitting such issue was not harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dee. Dig. <&wkey; 1062(1).]</p> <p>On Motion for Rehearing.</p> <p>6. Master and Servant <&wkey;265(15) — Injuries to Servant — Ignorance oe Approach oe Train.</p> <p>In an action against a railroad company for the death of its yard clerk, the ignorance of the decedent of the approach of the train which killed him cannot be inferred from the fact that he was killed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 893, 908; Dec. Dig. &wkey;> 265(15).]</p> <p>7. Master and Servant <&wkey;265(14) — Injuries to Servant — Presumption oe Contributory Negligence.</p> <p>In an action against a railroad company for the death of its yard clerk, it cannot be presumed that decedent was guilty of negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 893, 908; Dec. Dig. <&wkey; 265(14) j</p> <p>8. Master and Servant <&wkey;265(3) — Injuries to Servant — Burden oe Prooe.</p> <p>In a widow’s action against a railroad company for the death of its servant, plaintiff has the burden to prove the road’s negligence, and that it caused her husband’s death.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 879, 897; Dec. Dig. <&wkey;> 265(3).]</p> <p>9. Evidence &wkey;>597 — Weight—Surmise.</p> <p>Findings must rest on something more substantial than conjecture or surmise.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2449; Dec. Dig. <&wkey;>597.]</p>

<p>1. Appeal and Error <&wkey;>742(l) — Assignments of Error — Statements.</p> <p>Where assignments of error were not followed by statements showing that the special exceptions were ever acted upon, it will he presumed the exceptions were abandoned below, and they will not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;>742(l).]</p> <p>2. Evidence <&wkey;471(24) — Opinion of Witness-Conclusions.</p> <p>In an action for the death of a brakeman, evidence that after the accident he answered that he was hurt, and that the accident was caused by the failure of those in charge of a car to set the brakes, so it rolled down an incline and caught him, is not objectionable as a conclusion of the brakeman.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2196; Dec. Dig. &wkey;s471(24); Witnesses, Cent. Dig. §§ 834, 988.]</p> <p>3. Trial &wkey;>85 — Objections—Evidence—Admissibility.</p> <p>As the evidence was in part admissible, a general objection to the whole that it was a conclusion cannot be sustained.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]</p> <p>4. Evidence <&wkey;471(ll) — Opinion Evidence —Conclusions.</p> <p>In such case, an experienced brakeman could testify that it would not have taken a competent brakeman any length of time to have stopped the ear, as it was rolling down the incline; such testimony not being objectionable on the ground that it was a conclusion on the law and the facts.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2161; Dec. Dig. &wkey;471(ll)J</p> <p>5. Appeal and EIrror <&wkey;742(l) — Assignments of Error — Bills of Exception.</p> <p>The appellate court is not required to go further than to consult the statement under the assignment of error, and need not examine the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742(l).]</p> <p>6. Death &wkey;>67 —Damages—Evidence—Admissibility.</p> <p>In an action for the wrongful death of plaintiff’s husband, evidence as to his earnings in the past, and his earnings from time to time, is admissible.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 88; Dee. Dig. ¾^67.]</p> <p>7. Master and Servant <&wkey;274(9) — Injuries to Servant — Actions—Evidence.</p> <p>In an action for the death of a brakeman killed while between two cars to make a coupling, the automatic coupler having failed to work, evidence as to how a brakeman would open a knuckle in adjusting it to make a coupling is admissible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 949; Dec. Dig. &wkey;»274</p> <p>8. Appeal and EIrror i&wkey;237(5) — Presentation of Grounds of Review in Court Below — Necessity.</p> <p>Where the record disclosed no motion on the part of defendant to direct a verdict at the close of plaintiff’s case, the question whether it would have been proper to direct such verdict cannot be reviewed on appeal.</p> <p>riOd. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>237(5).]</p> <p>9. Master and Servant <&wkey;28(i(33), 289(33)— Injuries to Servant — Jury Question.</p> <p>In an action for the death of a brakeman killed while between cars to make a coupling., the questions of the railroad company’s negligence and the brakeman’s freedom from negligence held for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1020, 1125; Dec. Dig. &wkey;286(33), 289(33).]</p> <p>10. Master and Servant <&wkey;129(6) — Injuries to Servant — Negligence.</p> <p>Where a railroad company did not properly set the brakes on a ear or secure it, and it ran down an incline, causing the death of a brakeman, the act of the company was negligence, regardless of what set the car in motion.</p> <p>[Ed. Note. — For other cases, see Master and Arrant, Cent. Dig. § 262; Dec. Dig. &wkey;>129</p> <p>11. Negligence &wkey;>101 — Contributory Negligence-Effect.</p> <p>Under Rev. St. 1911, art. 6649, declaring that, in actions brought against any common carrier or railroad company for personal injuries or death, the fact that the employé may have been guilty of contributory negligence will not bar recovery but damages shall be diminished in proportion to the amount of negligence attributable to the employs, the contributory negligence of a railroad employé will not bar all recovery, but will merely diminish recovery.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ S5, 163, 164, 167; Dee. Dig. 101; Damages, Cent. Dig. § 371.]</p> <p>12. Master and Servant <&wkey;295(l) — Injuries to Servant — Assumed Risk.</p> <p>Where the rules of a railroad company forbade employes going between cars, the act of a brakeman in going between ears to effect a coupling, the automatic couplers having failed to work, was contributory negligence, if anything, and does not raise the question of assumed risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168, 1169, 1179; Dee. Dig. &wkey;295(l).]</p> <p>13. Appeal and Error <§=>1067 — Review— Harmless Error — Instructions.</p> <p>Where no judgment was asked or given against the receivers of a railroad company, the refusal of a special charge to return a verdict for the receivers was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. &wkey;1067.]</p> <p>14. Trial <&wkey;191(10) — Instructions—Assuming Facts — Contributory Negligence.</p> <p>In an action for death of a brakeman, where, though there was a total absence of evidence to show contributory negligence, that issue was submitted, the refusal of a special charge assuming that if deceased placed himself in a more hazardous position than was necessary he was guilty of contributory negligence was proper, as it was for the jury to draw such inferences.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§' 429, 430; Dec. Dig. <&wkey;191(10); Negligence, Cent. Dig. § 359.]</p> <p>15. Appeal and Error <&wkey;742(l) — Assignments of Error — Consideration.</p> <p>In an action for the wrongful death of a brakeman, an assignment complaining that the verdict was excessive because of the brakeman’s contributory negligence will not be considered where there was no statement on which to base the assignment, for the appellate court will not search the record.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742 <¾.]</p> <p>16. Trial <&wkey;133(2) — Argument of Counsel —Impropriety.</p> <p>In a personal injury action, where counsel for plaintiff was each time stopped before he made any improper argument and nothing actually improper was brought before the jury, the attempted improprieties are no ground for reversal.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 316; Dec. Dig. &wkey;133(2).]</p> <p>17. Appeal and Error <&wkey;877(4)i — Review-Harmless EIrror.</p> <p>In an action for the death of a railroad brakeman, brought by his father, his wife, and minor child, the court directed a verdict against the father, and, though the jury failed to so find, entered judgment against the father. JET eld that, where the father did not complain, the railroad company could not complain of the matter on appeal.</p> <p>[Ed. Note. — Eor other cases,, see. Appeal and Error, Cent. Dig. § 3567; Dec, Dig. 877(4).]</p> <p>18. Trial <&wkey;168 — Direction op Yeridiot— Rigiit of Court.</p> <p>Where plaintiffs had no cause of action against two of the defendants, and one of the plaintiffs had no cause of action, the court may dispose of such parties by directed verdict without submitting the matter to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 341, 376-380; Dec. Dig. &wkey;168.]</p>

<p>Appeal from District Court, Dallam County ; Hon. D. B. Hill, Judge.</p> <p>Action by J. G. Morton against W. B. Slaughter. Judgment for plaintilff, and defendant appeals.</p>

<p>Appeal from Grayson County Court; Dayton B. Steed, Judge.</p> <p>Action by George R. Shane and others against J. W. Madden and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Parmer County ;, D. B. Hill, Judge.</p> <p>Action by R. E. 'Chatten against the Pecos & Northern Texas Railway Company and another. Judgment for the plaintiff, and defendants appeal.</p>

Error from District Court, Dallas County; Kenneth' Foree, Judge. Suit by the Southland Life Insurance Company against B. A. Lamar, N. A. Shaw, and another. To review judgment by default against B. A. Lamar for the amount sued for, and against N. A. Shaw for the sum of $1,-000 and $100 attorney’s fees, N. A. Shaw brings error.

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Suit by the Southern Products Company against the Aransas Pass Channel & Dock Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court,'Wichita County ; E. W. Nicholson, Judge.</p> <p>Action by Hettie Houston against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff; and llefendant appeals.</p>

<p>1. Homestead <§=»216 — Trust Deeds — Property Subject — Business Homestead — “Auxiliary” — Findings of Jury —Con-stbuction.</p> <p>A finding that an uptown office of wholesale grain dealers was used as an auxiliary to and in connection with the plant which they claimed exempt from "a trust deed as their business homestead, is not inconsistent with a finding that the uptown office was their principal place of business as wholesale grain dealers; “auxiliary” meaning simply to confer aid or help.</p> <p>[Ed. Note. — For other eases, see Homestead, Cent. Dig. §§ 400-403; Dec. Dig. ⅞⅛3216.]</p> <p>2. Homestead @=»36 — Business Homestead.</p> <p>The essentials of a business homestead to exempt it from the lien of a trust1 deed of the owner’s property are that the owner shall be the head of a family and have a calling or business to which the place is adapted and reasonably necessary.</p> <p>[Ed. Note. — Eor other cases, see Homestead, Gent. Dig. § 56; Dec. Dig. <@=>36.]</p> <p>3. Homestead <@=>216 — Business Homestead —Findings oe Juey — Eeeeot.</p> <p>Where the findings of the jury import that the place of business claimed exempt as a business homestead from the lien of a trust deed is not used as the principal business, but only as an incident thereto, the holder of the trust deed is entitled to a judgment on the findings foreclosing the mortgage lien.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 400-403; Dec. Dig. <§=3216.]</p> <p>4. Homestead <@=>216 — Business Homestead —Election.</p> <p>While the owner of a business may have the right to elect, if he is engaged in two businesses, which he will hold as his business homestead, a finding of the jury that his principal place of business was one and not the other, shows an election.</p> <p>[Ed. Note. — For other cases, see Homestead, Gent. Dig. §§ 400-403; Dec. Dig. <@=>216.]</p>

R. Price, Judge. Suit by Lewis Goodman against A. M. Thornton and others to set aside a sale by a trustee under a deed in trust. Judgment for plaintiff, and defendants appeal.

Error from Taylor County Court; E. M. Overshiner, Judge. Action by J. W. Streetman and others against C. B. Lasater and others. Judgment for defendants on their cross-action against plaintiff Streetman and his sureties, and the plaintiffs bring error.

<p>Appeal from District Court, Johnson County ; O. L. Lockett, Judge.</p> <p>Suit by R. E. Gatewood against the Ft. Worth & Denver City Railway Company and another. From a judgment against the named defendant, it appeals.</p>

<p>Appeal from District Court, Mitchell County ; W. W. Beall, Judge. •</p> <p>Suit by P. C. Coleman and others against B. C. Moore and others. • From an order granting a temporary injunction, restraining defendants from erecting a cotton gin on described lots, they appeal.</p>

<p>1. Appeal and Error &wkey;5512 — Record — Showing Jurisdiction — Intermediate Courts.</p> <p>The transcript on appeal from the county court in a case originating in justice’s court should contain a transcript from the justice’s court showing the rendition of judgment and the giving of appeal bond there, necessary for jurisdiction of the county court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2326; Dec. Dig. &wkey;>512.]</p> <p>On Rehearing.</p> <p>2. Appeal and Error c&wkey;>635(2)'— Record — Amendment.</p> <p>The judgment on appeal from the county court in a case originating in justice’s coui’t should not be reversed for failure of the record to show rendition of judgment and giving of appeal bond in the justice court, necessary for jurisdiction of the county court, without opportunity being first afforded for correcting the record, if possible.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2776, 2829; Dec. Dig. &wkey; 635(2).]</p> <p>3. Evidence <&wkey;444(6) — Parol Evidence — Condition oe Payment — Notes.</p> <p>As between the parties to a note, the oral condition on which it was delivered, that it should be payable only on the happening of a certain event, is valid.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 1913, 2049; Dec. Dig. &wkey;444(6).]</p> <p>4. Evidence <&wkey;213(l) — Odder oe Compromise.</p> <p>Offer of the maker of a note to the payee, long after its maturity and refusal of payment, and after it had been given to an attorney to collect by suit, to allow it on a piano if said maker would buy a certain piano from said payee, being clearly one of compromise, containing no admission of liability or of any fact from which liability could be inferred, cannot be shown in an action on the note, in which the defense was delivery of the note on an oral condition of payment, which had not been satisfied.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 745, 748-750; Dec. Dig. &wkey; 213(1).]</p> <p>5. Trial &wkey;>251(7) — Instructions — Undisputed Pacts.</p> <p>Where plaintiff in an action on a note, in which the defense was that it was delivered on the oral condition that it should not be paid unless a $400 note given by B. to defendant on the purchase of land was paid, merely denied that there was any such condition, and did not raise the issue of collusion or good faith, it was error to submit the issue of whether the note of B. was paid, it appearing that B. refused to pay it, and otherwise refused to comply with his contract of purchase, on the ground of misrepresentations by plaintiff, the broker, and that defendant, to protect the property, had to take up a note, constituting a lien on the land, which B. had assumed, and that consequently defendant canceled the contract of sale, and surrendered to B. his $409 note.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. § 592; Dec. Dig. ©=»251(7).]</p>

<p>Gas <&wkey;9 — Main Extension — Contract “on' Extension.</p> <p>Under a contract by a gas company that it would repay to a consumer on the cost of a main extension partly paid for by him $55 for each new consumer obtained “on said extension” within one year, the consumer so contracting is not entitled to any refund for new gas consumers whose residences are not on the street in which the extension is laid nor connected directly with the extension, but are on a street a block distant and served by another extension, although the second extension crossed and is connected with the first.</p> <p>[Ed. Note. — Eor other cases, see Gas, Cent. Dig. § 3; Dec. Dig.</p> <p>Eor other definitions, see Words and Phrases, Eirst and Second Series, ’On.]</p>

W. Akin, Judge. Injunction proceedings by John Craig and another against the Ft. Worth & Denver City Railway Company and others. From a judgment denying the injunction, plaintiffs appeal.

<p>1. Appeal akd Error &wkey;>216(2) — Scope oe Review — Preservation of Exceptions — Waiver oe Rejections — Instructions.</p> <p>Objections to a charge as defective or incomplete cannot be considered on appeal, unless request was made on the trial for a special charge correcting the alleged errors.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>216(2); Trial, Cent. Dig. § 628.J</p> <p>2. Trial <&wkey;260(8) —Instructions— Sufficiency — Requests—Instructions Already Given.</p> <p>Where the court fully and fairly presented in the charges given the issue of contributory negligence, it was not error to refuse a requested charge on that question which was covered by the charge given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 657; Dec. Dig. &wkey;260(8).]</p> <p>3. Damages &wkey;>191 — Medical Attendance-Evidence.</p> <p>The mere fact that plaintiff’s attending physician qualified his statement that the reasonable charge for his services was $25 by the clause, “if the patient were able to pay it,” would not necessarily limit or destroy its weight as a statement of their reasonable value.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 50⅛ 510; Dec. Dig. <&wkey;>191.]</p> <p>4. Damages <&wkey;46, 101 — Medical Attendance — Liability—Extent. '"</p> <p>Where plaintiff is entitled to recover for medical attention and medicines necessary in the treatment of injuries, defendant is liable, not for the amount actually expended or incurred, but only for the reasonable or market value of such services and drugs as were reasonably necessary and for which plaintiff has paid or legally bound himself to pay, since defendant is not a party to the contract for services.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 99, 242-254; Dec. Dig. &wkey;46, 101.]</p> <p>5. Damages <&wkey;46 —Medical Services — Legal Liability.</p> <p>Where plaintiff sent for a doctor and accepted his services, in the absence of some other agreement, he would be legally liable to pay therefor.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 99, 251; Dec. Dig. <S&wkey;46.)</p> <p>6. Damages &wkey;>191 — Liability—Evidence— Sufficiency — Medical Attendance.</p> <p>Evidence that plaintiff sent for a doctor and accepted his services, together with the doctor’s statement that his services were of the reasonable value of $25, if plaintiff could pay it, is sufficient to sustain an award of that amount.</p> <p>[Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 504, 510; Dec. Dig. &wkey;191.]</p> <p>7. Damages <&wkey;163(l) — Burden of Proof— Expenses — Nursing.</p> <p>Where plaintiff pleaded that his wife nursed him] for 3Ó days after the injury for which he sought recovery, and that her services were reasonably worth $2 per day, and the evidence showed that it was necessary to have a nurse and that the wife and a neighbor did the nursing, that was insufficient, without proof of the reasonable value of the services, to support an award for the amount claimed.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 454, 455; Dec. Dig. &wkey;163(l).]</p> <p>8. New Trial <3^150(4) — Newly Discovered Evidence — Affidavit—Sufficiency.</p> <p>An affidavit for new trial alleging diligent effort by defendant before trial to learn the names of witnesses of an accident, that inquiry was put to witnesses as to other possible witnesses, that none of such witnesses disclosed that the newly discovered witness had seen the accident, and that the defendant nor its attorneys knew until after trial that he had seen it, sufficiently shows due diligence.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 310; Dec. Dig. &wkey;jl50(4).]</p> <p>9. New Trial <&wkey;104(3) — Newly Discovered Evidence — Cumulative Evidence — Opportunity to Observe.</p> <p>While new trial will not be granted for newly discovered evidence which is merely cumulative, evidence of a witness of an accident, who was more advantageously placed to see it, and who observed that plaintiff’s horse began kicking when the breeching fell on its legs and not on the approach of defendant’s car, is sufficient on winch to grant a new trial, though there was other evidence that after the car came along, the breeching was down.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 220; Dec. Dig. &wkey;104(3).]</p> <p>10. New Trial t&wkey;i03 — Newly Discovered Evidence — Materiality.</p> <p>Where plaintiff testified that his injury resulted when his horse kicked, being frightened by defendant’s car, newly discovered evidence that the horse began to plunge and kick when the breeching fell on his legs before the car approached is material so as to warrant new trial, if diligence is shown.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 215-217; Dec. Dig. &wkey;103J</p> <p>Buck, J., dissenting.</p>

<p>Appeal from District Court, Grayson County; W. M. Peck, Judge.</p> <p>Action by Abbie E. Peck against G. T. Loux and others. From a judgment for defendants, plaintiff appeals.</p>

W. Akin, Judge. Suit for divorce by Myrtle Grisham against W. P. Grisham. From a judgment granting defendant a divorce on his cross-plea, plaintiff appeals.

<p>1. Evidence <§=*131 — Relevancy — Similar Facts.</p> <p>In an action on notes given in payment of an engine, where one of the issues raised by defendants’ pleading and evidence was that the engine had failed to develop sufficient power to operate the gin outfit at the necessary speed to properly separate the lint from the seed as guaranteed by plaintiff, evidence in .rebuttal of defendants’ evidence in support of such issue that a witness had a gin plant substantially the same as that of defendants,’ constructed by the same factory, and operating the same type of engine sold to the defendants, and that such engine had for three years furnished satisfactory power for operating his gin plant, in view of the similarity in all essential particulars, was admissible, subject to the court’s discretion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 399-402; Dec. Dig. <@=*131.]</p> <p>2. Sales <@=* 181(5) — Evidence — Relevancy.</p> <p>In such action testimony of a farmer who had two bales of cotton ginned by defendants as to what kind of a turnout he got from those bales of cotton, to show that the turnout was poor, in that the quality of lint was not what it should have been, and resulted from the failure of the engine to furnish sufficient power to speed the gin, in connection with testimony that speed in operating gins produces a greater quantity of lint and that speed or lack of speed would not alone cause a poor turnout in the quantity of lint but that the condition of the cotton and the soil on which it was grown contributed to that result was inadmissible as the inference would be only that the gin was run at too slow a speed and not that it did not have power to run at a greater speed.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 480; Dec. Dig. <§=*181(5).]</p> <p>3. Evidence <@=*317(10) —Hearsay —Power oe Engine.</p> <p>In such action testimony of a witness who was operating a competing gin that defendants’ former customers told him that they brought their cotton to his gin because they got a poor turnout at defendants’ gin, due to the insufficient power of the engine, was hearsay and properly excluded.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1183; Dec. Dig. <@=*317(10).]</p> <p>4. Evidence <§=*242(1) — Action eor Price-Admissions oe Agent.</p> <p>In such action, where defendants’ bookkeeper was one of those elected by defendant to be present when the engine was tested to observe the amount of fuel consumed to determine whether plaintiff was within its guaranty as to cost, and where he was present, his statement in writing, as a part of the report of the others present, that the fuel consumed by the engine was less than that guaranteed in the contract, was admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 893; Dec. Dig. <@=*242(1).]</p> <p>5. Trial <@=*352(4) — Action eor Price — Special Issues.</p> <p>In an action on notes given for the price of an engine sold for use in defendants’ cotton gin, ■where defendants set up that. the engine never performed as guaranteed by the contract and as claimed by plaintiff, that plaintiff agreed to disregard the former test and to thereafter test the engine, at which time it failed to develop the power guaranteed, and where plaintiff denied the making of any new contract or a surrender of any rights under the original contract or test, but admitted the single demonstration after the original test in order to satisfy defendants, and where there was evidence in support of the pleading and the reply, the submission of an issue as to whether the later test was merely a demonstration in an effort to settle the differences arising out of the contract was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 840; Dec. Dig. <@=*352(4).]</p> <p>6. Sales <@=*441(3) — Action eor Price — Guaranty — Sueeiciency oe Evidence.</p> <p>Evidence in an action on notes given for an engine sold the defendants for use in its cotton gin held to sustain the finding that the engine could operate the gin as guaranteed.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1279, 1280; Dec. Dig. <@=*441(3).]</p> <p>7. Appeal and Error <§=>750(4) — Question of Fact — Review.</p> <p>An assignment that there was no evidence in the record to sustain a finding of the jury requires the Court of Civil Appeals to examine the evidence and determine whether there is contained therein testimony which will support the verdict and judgment.</p> <p>[E'd. Note. — For other eases, see. Appeal and Error, Cent. Dig. § 8079; Dec. Dig. <§=>750(4).]</p> <p>8. Appeal and Error <§=>981 — New Trial <§=>99 — Discretion of Trial Court — Motion for New Trial — Newly Discovered Evidence.</p> <p>A motion for a new trial on the ground of newly _ discovered evidence is addressed to the trial judge’s sound discretion, and his action thereon will not be reviewed, unless it affirmatively appears that he has abused such discretion.</p> <p>[Ed. Note. — For other cases* see Appeal and Error, Cent. Dig. § 8876; Dec. Dig. <§=>981; New Trial, Cent. Dig. §§ 201, 207; Dec. Dig. <§=>99.] ■</p>

Prewitt, Judge. Action by the Darnell Lumber Corporation against the Texas Glass & Paint Company and the Gulf, Colorado & Santa Fé Railway Company, with plea by the Texas Glass & Paint Company for judgment over against the Railway Company. Judgment for plaintiff against the Texas Glass & Paint Company, and for defendant Railway Company against the plaintiff .and its codefendant, and the latter appeals.

<p>Appeal from District Court, Wichita County; E. W. Nicholson, Judge.</p> <p>Action by G. R. Xantis against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Insurance €=>771 — Mutual Benefit Association — Beneficiary — Constitution and By-Laws.</p> <p>Under a mutual benefit association policy designating one as beneficiary by name, followed by the words, “bearing relationship of husband,” and expressly subject to the constitution and laws of the association, which limit beneficiaries to husband or wife or certain relatives, a divorced husband cannot take as beneficiary, although the designation has not been changed by the wife in her life.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1935, 1937; Dec. Dig. €=>771.] ■</p> <p>2. Insurance €=>767 — Insurable Interest-Husband.</p> <p>A divorced husband has no insurable interest in the life of his former wife.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1929-1931; Dec. Dig. €=>767.]</p> <p>3. Insurance €=>775 — Mutual Benefit Associations — Change of Beneficiary.</p> <p>_ Where a mutual benefit policy, limiting beneficiaries to husband and wife and relatives, was payable to a husband, who was later divorced, no right to recover on the policy was given him by the will of Ms former wife in his favor.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1941; Dec. Dig. €=>775.]</p> <p>4. Insurance €=>755(3) — Mutual Benefit Associations — Change of Beneficiary-Estoppel.</p> <p>An association is not estopped to deny the rights of a divorced husband as beneficiary on his wife’s policy by accepting premiums thereon from him after divorce, or by paying him, after her death, a funeral benefit, for the payment of premiums may be presumed to have been for the benefit of surviving children and the funeral benefit to have been used for funeral expenses.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1909-1913, 1915, 1916; Dec. Dig. €=>755(3).]</p> <p>5. Insurance €=>743 — Mutual Benefit Associations — Insurance Premiums — Voluntary Payments.</p> <p>Voluntary payments of premiums by one not a beneficiary of a policy cannot be recovered.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1888; Dec. Dig. €=>743.]</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by O. M. Bryant against the Commonwealth Bonding & Casualty Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. New Trial <⅜=56 — Improper Documents in Jury Room.</p> <p>A pleading in another suit, not offered in evidence, having in contravention of Rev. S-t. art. 1957, found its way into the jury room, and influenced one juror, at least, to agree to a higher award for land condemned than he otherwise would, new trial should be granted.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent Dig. §§ 116-119; Dec. Dig. <⅜=>56.]</p> <p>2. Appeal and Error <S=>978(3) — Review-Denial op New Trial.</p> <p>While the matter of refusing a new trial because of documents not introduced in evidence having been taken into the jury room and considered by the jury is largely in the discretion of the trial court, such discretion is not an arbitrary one so as to be beyond the revision of the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3870; Dee. Dig. <®=>978(3).]</p>

<p>Error from Kaufman County Court; James A. Cooley, Judge.</p> <p>Action by John F. Trail against H. C. Kel-lam and others. Judgment against defendants, and defendant Kellam brings error.</p>

<p>Appeal and Error <§=>733, 742(1) — Assignments op Error — Too General.</p> <p>A single assignment of error in appellant’s brief that “the court erred in its judgment herein in rendering judgment against the plaintiff because under the undisputed evidence the plaintiff was entitled to recover,” not accompanied by a statement to enable the appellate court to determine the question raised without searching the record, will not be considered, as it is too general, and because it is not followed by a statement of the .question raised.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3000, 3025-3027; Dec. Dig. <§=>733, 742(1).]</p>

<p>Appeal from Wichita County Court; Harvey Fiarais, Judge.</p> <p>Action by Butler Bros, against the Rexall Drug Company and others1. Judgment for plaintiff, and defendant Annie Will Massie appeals.</p>

<p>Appeal from District Court, Limestone County; A. M. Blackmon, Judge.</p> <p>Suit by J. J. Beckham against the Munger Oil & Cotton Company. Judgment for defendant dissolving a temporary injunction, and plaintiff appeals.</p>

<p>Appeal from District Court, Potter County; Hugh D. Umphres, Judge.</p> <p>Lee Vansiekle, under á writ of habeas corpus, was refused bail, and he appeals.</p>

<p>Appeal from District Court, Hays County; Frank S. Roberts, Judge.</p> <p>Antonio Gonzales and Enrique Caballero were convicted of hog theft, and they appeal.</p>

<p>1. Fraudulent Conveyances <§=>52(1) — Homestead.</p> <p>Part of the homestead property, not previously abandoned as such, may, without consideration, be conveyed to the wife, becoming her separate property, free from claims of the husband’s creditors.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 118, 122-124; Dec. Dig. <g=»52(l).)</p> <p>2. Husband and Wiee <®^150 — Improving Separate Property with Community Funds.</p> <p>The wife’s land cannot be sold for the husband’s debts, because of improvements made thereon with community funds when he was insolvent, unless made to her knowledge with intent to defraud his creditors, though the creditors may have some remedy as to the improvements.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 575-5S1; Dee. Dig. 150.)</p>

<p>1. Appeal and Error @=722(1) — Assignments op Error — Filing in Trial Court.</p> <p>A general assignment of error, though not copied from the motion for new trial, constituting- the only assignments of error filed in the trial court, may, in connection with one copied from such motion, be sufficient for consideration.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994-2996; Dec. Dig. @=722(1).]</p> <p>2. HusbandI and Wipe ■ @=221 — Enpoecement op Lien — Parties.</p> <p>The wife of the purchaser is not a necessary party to action to enforce the vendor’s lien, though the purchaser has used the property as a homestead.</p> <p>IEd. Note. — Eor other pases, see Husb.and and Wife, Cent. Dig. §§ 707, 802-806, 968, 973, 976½ ; Dec. Dig. @=221.]</p> <p>3. Appeal and Error @=282 — Assignments op Error — Filing in Trial Court.</p> <p>Against objection, an assignment of error may not be considered, where no such assignment was filed with the trial court.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. @= 282.]</p>

<p>Appeal from District Court, Wood County; M. B. Briggs, Judge.</p> <p>Action by I-Iomer W. Carson against the Winnsboro Cotton Oil Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial <&wkey;352(4) — Special Issues.</p> <p>In an action on an alleg'ed oral agreement for work done in converting an oil well, abandoned as such, into a gas well, there being no controversy as to the kind of work necessary, or as to whether the person malting the agreement with the plaintiff was acting as president of the defendant company, a special issue submitted to the jury, requiring them to find whether or not the defendant’s president employed the plaintiff to do further work on the well, to make it produce gas after it was abandoned as an oil well, when taken with another issue, requiring the jury to find the rate per day agreed upon, if they found that an oral contract existed, was proper and sufficient to cover the issues raised by the testimony.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 840; Dec. Dig. &wkey;352(4).]</p> <p>2. Trial <&wkey;351(5) — Special Issues.</p> <p>In such action, the existence of the contract and the rate per day agreed upon having been submitted to the jury by special interrogatories, a requested instruction submitting as an issue whether or not F. IS., as president of defendant corporation, had stopped the drilling, and had by verbal contract employed the plaintiff to shut off the water for the purpose of making the gas well, and promised to pa'y the plaintiff the sum of $15 per day, was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 834; Dec. Dig. &wkey;351(5).]</p> <p>3. Trial &wkey;>352(4) — Special Issues.</p> <p>In an action under an alleged oral agreement to finish as a gas well one bored under a written agreement specifically providing for an oil well, an instruction directing the jury to find whether defendant with knowledge that the original contract between the parties had been completed, directed the way in which the work should he done from and after its abandonment as an oil well, was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 840; Dec. Dig. &wkey;352(4).]</p> <p>4. Contracts &wkey;>322(l) — Breach—Evidence —Burden oe Proof.</p> <p>In an action on an alleged oral agreement to convert into a gas well an oil well bored under a written agreement providing for a price per foot up to 2,000 feet, which had been terminated, it being necessary to withdraw a portion of the casing in returning to the gas sand, which caused water and sand to flow into the well, the burden of proof was not on the plaintiff to show that the work done after pulling the 5-inch casing was made necessary by water coming from below the gas sand, or that, after being requested not to drill any further for oil, he drew the 5-inch easing, cased off all water above the gas sand, bailed, sand-pumped, and put the well in good condition, since, as he was not required to do the work of returning to the gas sand under the written contract, it was necessarily covered by the parol contract pleaded.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1306, 1465, 1754, 1772; Dec. Dig. &wkey;?322(l).]</p> <p>5. Appeal and Error <&wkey;690(l) — Assignments op Error — Statement.</p> <p>Where it does not appear from a bill of exceptions that the defendant was not notified to produce the original of a check, or that he did not have the check in court, an assignment of error that the plaintiff had, over objection, been permitted to testify as to the check, will not be considered.</p> <p>_[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897, 2904; Dec. Dig. &wkey;> 690(1).]</p> <p>6. Trial <&wkey;219 — Instructions—Definition op Terms — Knowledge op Language — Presumption.</p> <p>The terms “burden of proof” and “preponderance of the testimony” being of common use, it will not be presumed that the jury did not understand them; and the refusal of instructions defining such terms is not ground for reversal.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 489; Dec. Dig. &wkey;219.]</p> <p>7. Trial <&wkey;>217 — Instructions — Duty op Jurors — Compliance with Oath — Presumption.</p> <p>It will not be presumed that the jury would be inclined to go contrary to their statutory oath to find upon the issues submitted without reference to their opinions as to the legal rights of the parties, and a refusal to instruct on the duty of jurors in that .respect is not reversible error.</p> <p>[Ed. Note. — For other cases, see Tidal, Cent. Dig. §§ 483, 485; Dec. Dig. &wkey;217.]</p> <p>8. Contracts <&wkey;354 — Appeal and Error-Findings.</p> <p>In an action upon an alleged oral agreement, where the only controverted issue of fact was the existence of the agreement, the neglect of the court to require a finding that the plaintiff did the particular work alleged in his petition was not error.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. &wkey;354; Trial, Cent. Dig. §§ 858,</p> <p>9. Damages <&wkey;>225 — Actions—Work Performed After Commencement op Suit.</p> <p>In an action on an oral contract to finish as a gas well an oil well drilled under a written contract where defendant did not object to the completion of the work after the institution of the action, or seek to abate the action for that reason, plaintiff’s cause of action being upon his entire contract, he was entitled under an amended petition to recover for the work performed after the institution of the suit.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 567; Dec. Dig. <&wkey;225.]</p> <p>10. Contracts <&wkey;232(l) — Construction—Incidental Expenses.</p> <p>Under an oral contract to do additional work, changing a proposed oil well into a gas well, at a specified rate per day, the absence of proof that expenses alleged by the plaintiff to be incidental to the work were to be paid by the defendant, in addition to the rent per day, they became a part of the work which he undertook to perform at the agreed price.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1071, 1073-1075%, 1078-1086; Dec. Dig. <&wkey;>232(l).]</p> <p>On Motion for Rehearing.</p> <p>11. Woek and Labor >&wkey;13 — Acceptance op Services — Quantum Meruit.</p> <p>In an action upon an alleged oral agreement to do additional work in changing a proposed well into a gas well, where the plaintiff showed the performance of work of the value alleged in the agreement upon the repudiation of the contract by the defendant, so as to deprive the plaintiff of the legal right to recover on said contract for work done after the institution of the suit, he was entitled to recover upon his alternative claim of quantum meruit.</p> <p>[Efl. Note. — For other cases, see Work and Labor, Cent. Dig. § 28; Dec. Dig. &wkey;>13.]</p>

<p>1. Appeal and Erkor <§=^1040(10) — Review —Harmless Error.</p> <p>In an action for the killing of a cow, where the petition generally averred negligence and 1 recovery was based on the failure of the engineer to maintain a proper lookout in approaching the crossing, defendant was not harmed by the overruling of its special exception complaining of the petition’s failure to specify the negligence complained of, as the engineer was present and testified to the lookout maintained therefor under rule 62a (149 S. W. x), and the error must be disregarded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4098, 4108; Dec. Dig. <©=> 1040(10); Pleading, Cent. Dig. §§ 2S4, 400.]</p> <p>2. Appeal and Error <©=>934(2) — Presumptions — Special Verdict— Sufficiency.</p> <p>Under Rev. iSt. 1911, art. 1985, declaring that upon appeal or writ of error, an issue not submitted and not requested by a party shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such finding, the failure of the jury, in an action against a railroad company for the killing of a cow, to find that the failure of the engineer to keep a lookout was the proximate cause of the injury, is no ground for objection, where the evidence warranted the conclusion, for it will be presumed that the court so found.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. <©=>934(2).]</p> <p>3. Appeal and Error <©=>1068(5) — Harmless EteitoR — Instructions—Refusal.</p> <p>In an action for the killing of a cow at a railroad crossing, where, in response to a special issue as to whether the engineer of the train used ordinary care on approaching the crossing, in looking out for any obstruction on or near the crossing, the jury found that the engineer did not use ordinary care, the refusal of a requested charge that the burden of proof was on plaintiff to show by a preponderance of the evidence that the employes of the railroad company were negligent in killing the cow was not error.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4230; Dec. Dig. <§=>1068(5);. Trial, Cent. Dig'. § 475.]</p> <p>4. Railroads <§=>447(3) — Killing Animals— Instructions — Burden op Proof.</p> <p>A requested charge that the burden of proof was upon plaintiff by a preponderance of the evidence that the employes of the defendant railroad company were negligent in striking and killing his cow is incomplete, and may be refused for that reason.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1645; Dec. Dig. <©=>447 (3).]</p> <p>5. Appeal and Error <©=>216(2) — Instructions — Request.</p> <p>Where the case was submitted on special issues, a party desiring instructions defining the terms used must .request such instructions, or he cannot complain of failure of the court to give them.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec.Dig. <©=>216(2); Trial, Cent. Dig. § 628.]</p> <p>6. Appeal and Error (<©=>1070(2)1 — Special Verdicts — Answers.</p> <p>In an action tried on special issues, the refusal of the court to strike an answer to an issue is no ground for reversal, though the answer was not responsive where it was immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4232, 4233; Dec. Dig. <©=> 1070(2).]</p> <p>7. Trial <©=>352(1) — Special Verdicts — Special Issues.</p> <p>In an action tried on special issues, the refusal of a special issue which was on the weight of the evidence was argumentative, and was immaterial, was not error.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 840; Dec. Dig. <©=352 (1).]</p> <p>8. Evidence <©=>18 — Judicial Notice —Attorney’s Fee.</p> <p>In an action for the killing of a cow begun in justice court, appealed to county court, and finally appealed to the Court of Civil Appeals, the court may take judicial notice that an award of $15 as attorney’s fees was not excessive.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig.. § 22; Dec. Dig.' <⅞=>18.]</p>

<p>Injunction <®=3l22 — Pleading— Sufficiency of Verification.</p> <p>In an action for an injunction, where the petition was signed “Pope & Sutherland, Attorneys for Plaintiff,” verification by the affidavit of H. R. Sutherland, who did not therein describe himself as the agent or attorney of the plaintiff, in the absence of anything in the petition or affidavit to show that the affiant was a member of the firm was insufficient.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. <⅜^>122.]</p>

<p>Appeal from District Court, Sabine County; H. C. Howell, Special Judge.</p> <p>Trespass to try title between F. G. Mott and others and J. A. Scurlock and others. Judgment for Scurlock and others, and Mott and others appeal.</p>

<p>Appeal from Scurry County Court; G. R. Buchanan, Judge.</p> <p>Action by W. H. Patterson against the First National Bank of Snyder. Judgment for plaintiff, and defendant appeals.</p>

P. Dohoney, Judge. Action by D. C. Ellison against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.

<p>Appeal from District Court, Uvalde County; R. H. Burney, Judge.</p> <p>Suit by A. S. Baylor against D. B. Bol-linger and another. From a judgment for plaintiff, the named defendant appeals.</p>

<p>1. Landlord and Tenant <§=>223(1) — Action —-Payments.</p> <p>In a landlord’s action against his tenant, where the tenant claimed a set-off of certain amounts against the landlord, who admitted payment on an item of $4.50, instead of $4.97, as claimed by the tenant, the court should have allowed the amount so admitted as a credit in favor of the tenant.</p> <p>[Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. § 885; Dec. Dig. <§=>223(1).]</p> <p>2. Landlord and Tenant <§=>252(1) — Landlord’s Lien — Judgment.</p> <p>In a landlord’s action against Ms tenant, and against third parties for the value of cotton grown 'by the .tenant on which the landlord claimed a lien, where it appeared from the contract and from the landlord’s letters that the tenant was authorized to sell the cotton purchased by such third parties, they were not guilty of a conversion when they bought and used it.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1022; Dec. Dig. <§=>252(1).]</p>

<p>Cabriers <§=»3¾2(7) — Carriage of Passengers — Wrongful Ejection — Damages.</p> <p>In an action by a railroad passenger for ejectment from Ms train at a flag station, eight miles from destination, after his refusal to sign a scrip sufficient to cover his fare before its detachment from the book, the condition of the contract being that he should write his name on th.e scrip, “whenever detached by the conductor,” judgment for $800 was excessive by $700.</p> <p>[Ed. Note. — Eor other cases, see 'Carriers, Cent. Dig. § 1490; Dec. Dig. <§=>382(7).]</p>

<p>1. Brokers <§=>8(3), 86(4) — Actions —Evidence — Procuring Cause.</p> <p>Evidence held to support finding of employment of plaintiff as broker, and that he was the procuring cause of sale of the property.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 9, 117; Dec. Dig. <§=>8(3), 8©(4).]</p> <p>2. Brokers <§=>53 — Compensation—Procuring Cause.</p> <p>Where plaintiff, employed as broker, was the procuring cause of sale, although the property was for sale by other agents, and plaintiff knew that it was, he was entitled to compensation.</p> <p>[Ed. Note. — Eor other cases, see Cent. Dig. § 74; Dec. Dig. <§=>53J Brokers,</p> <p>3.Trial <§=>219 — Instructions—Definition of Terms — Efficient and Procuring Cause.</p> <p>Un brokers suit for commissions, it was Rot eiior to refuse to instruct as to meaning of efficient and_ procuring cause,” as the words are not technical, but are in common use.</p> <p>£fete- — ■For other eases, see Trial, Cent. Dig. § 489; Dee. Dig. <§=219.]</p>

<p>Appeal from District Court, Pecos County; W. O. Douglas, Judge.</p> <p>Action by Jonas Reinertsen against the Baker Manufacturing Company, a copartnership, and against the Zimmerman Land & Irrigation Company as garnishee, consolidated with several other actions by E. W. Bennett & Sons and others against the same garnishees, in which numerous persons intervened, asserting claims to the fund. From the judgment, said Reinertsen appeals.</p>

D. Owens, Judge. Suit by Tom Eads & Co. in assumpsit and to foreclose a chattel mortgage lieu against T. B. Honeycutt, in which John Gregory intervened. From, a judgment for plaintiffs against Honeycutt for the debt and foreclosure of the mortgage lien, but decreeing certain cotton to the intervener, plaintiffs appeal.

<p>Corporations @=432(12) — Sales op Corporate Stocks — Authority op Corporate Agent — Evidence.</p> <p>In an action for commissions due for sale of corporate stock, as well as for compensation for services rendered the corporation, evidence held to warrant a finding that the agent, with whom plaintiff made the contract, had authority to bind the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1737, 1743, 1762; Dec. Dig. @=432(12).]</p>

<p>Master and Servant <®=286(6), 288(1), 289(1) — Injuries to Servant — Actions — Evidence.</p> <p>In an action by a servant, who was hurt when a board from a cotton conveyer turned, the question whether he was furnished a safe place of work, as well as the questions whether he assumed the risk, or was guilty of contributory negligence, held, for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1010, 1017, 1068. 1069, 1087-1089; Dec. Dig. @=2SG(6), 288(1), 289(1).]</p>

<p>Appeal from District Court, Tyler County; A. E. Davis, Judge.</p> <p>Action by Mary S. Walls and others against R. A. Cruse and others. From an adverse judgment, plaintiffs appeal.</p>

M. Overshiner, Judge. Action by J. A. Knight against the Commonwealth Bonding & Casualty Insurance Company, begun in justice’s court, and appealed to county court! From a judgment there for plaintiff, defendant appeals.

Green, Judge. Action by the Hjllyea'-Deutsch Lumber1 Company against W. L. Clark and others, in. which the Goliad Independent School District and others intervened. From a judgment sustaining the plea of privilege for some of the defendants, plaintiffs- appeal.

<p>1. Waters and Water Courses ⅞=247(1)— Irrigation Companies — Stockholders—Application eor Receives — Damages.</p> <p>In a suit to place the property and business of a corporation in the hands of a receiver indefinitely for the .benefit of minority stockholders, which, if granted, would remedy the alleged depreciation of plaintiff’s property caused by the corporation’s failure to irrigate his land, a claim for damages for permanent depreciation would have no basis and could not be made in good faith.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 314; Dec. Dig. <@= 247(1).]</p> <p>2. Corporations <@=553 (5) — Minority Stockholders — Action—Appointment op Receiver-Grounds.</p> <p>A court of equity will not appoint a permanent receiver for a corporation because of the dissatisfaction of the minority stockholders with .the management of the majority. .</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2205; Dec. Dig; <@=553(5).]</p> <p>3. Corporations <@=553 (6) — Appointment op Receiver — Grounds. ■</p> <p>The fact that the majority of the stockholders improvidently administer the affairs of a corporation is not ground for a receivership.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2206, 2207; Dec. Dig. <@=553(6).]</p>

<p>Appeal from District Court, Kerr County; R. H. Burney, Judge.</p> <p>Action by Claud Wellborn and others against Tom Wellborn. Judgment for defendant, and plaintiffs appeal.</p>

A. Childers, Judge. Garnishment proceedings by M. Fuson against the Ingleside Truck Growers’ Association and another, in which the First State. Bank of Aransas Pass intervened. From the judgment rendered, the Bank appeals.

<p>1. Mechanics’ Liens <⅜=>73(2) — Agreement of Owner — Homestead.</p> <p>A mechanic’s lien on a homestead can be acquired only by strict compliance with article 5631, Vernon’s Sayles^ Ann. Civ. St. 1914, requiring the execution of a written contract signed by the owner and his wife, acknowledged by her before the material or labor is furnished and recorded in the office of the county clerk.</p> <p>[Ed: Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 88; Dec. Dig. <S=>73(2).]</p> <p>2. Homestead <S=>97 — Equitable Liens— Subcontractors.</p> <p>In the absence of such contract, those who furnished labor or material to the contractor have no equitable lien on the homestead or on the money due the contractor for the improvement.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 154; Dec. Dig. <§=>97.]</p> <p>3. Liens <©=>7 — Equitable Lien — Equity Follows the Law.</p> <p>Under the maxim that equity follows the law. one who by noncompliance with article 5631, Vernon’s Sayles’ Ann. Civ. St. 1914, fails to secure a mechanic’s lien cannot claim an equitable lien.</p> <p>[Ed. Note. — For other cases, see Liens, Cent. Dig. §§ 26-28; Dee. Dig. <S=>7.]</p> <p>4. Assignments <®=>48 — Equitable Assignments — Requisites.</p> <p>To create an equitable assignment of a fund, there must be delivery actual or symbolic, or some act to place the fund beyond the control of the assignor, and a mere promise or agreement to pay a debt out of such fund is not an equitable assignment.</p> <p>[Ed. Note. — For other eases, see Assignments, Cent. Dig. § 133; Dee. Dig. <§¿=>48.]</p> <p>5. Assignments <§=>52 — Equitable Assignments — Requisites.</p> <p>The contractor agreed to pay for material and labor out of the money to be paid him when the work was completed. Held not an equitable assignment of the fund, since it remained under the contractor’s control.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 107-111; Dec. Dig. <§=>52. ]</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Suit by Robert H. Rice against the West Texas Bank & Trust Company. Prom a judgment for- plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Gonzales County.</p> <p>Action by P. N. Minear and others against J. D. McVea and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from Cameron County Court; H. L. Yates, Judge.</p> <p>Action by Andres Pacheco against the Missouri, Kansas & Texas Railway Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Tyler County Court; W. A. Johnson, Special Judge.</p> <p>Action by J. T. Coleman against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, on appeal from a justice, defendant appeals.</p>

Q. Adamson, Judge. Suit by the Farmers’ National Bank of Howe against J. D. Hall and the Paul Bean Grain Company, to which P. W. Bean was made a party. From a judgment for Hall against Bean on the issues between them, Bean appeals.

<p>1. Statutes @=311<>½(1) — Titi.e — Constitu TIONALITY — “SUBJECT”—“OBJECT.”</p> <p>Acts 33d Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b), entitled, “To prevent fire insurance companies from avoiding liability from loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance when the act breaching such provision has not contributed to bring about_ such loss,” is not violative of the constitutional provision that, “No * * * bill shall contain more than one subject, which shall be expressed in its title,” in that section 1 of the act provides that the breach of material and nontechnical warranties and provisions not contributory to loss shall be no defense or avoid the policy, since the “title” gives reasonable notice of the subject-matter or “object” of the act, and the section referring to warranties and Constitution being-germane to the title dominates or controls it,, the effect of the act being to make any warranty not contributory to the breach an immaterial provision in the policy.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 139; Dec. Dig. @=110½(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Object; Subject.]</p> <p>2. Insurance @=308 — Warranties—Breach.</p> <p>The breach of mere technical or immaterial provision in an insurance policy which does not contribute to the loss will not defeat or forfeit a right under the policy.</p> <p>[Ed. Note. — For other cases, see Insurance,. Cent. Dig. §§ 700, 701; Dec. Dig. @==>308.]</p> <p>3. Insurance @=250(1), 302 — Avoidance ox Policy — Statute—Constitutionality.</p> <p>Acts 33d Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4S74b), providing that any breach or violation by the insured of any of the warranties, conditions, or provisions of a policy of fire insurance shall not render the policy void or constitute a defense for loss unless such breach or violation contributed to bring about the destruction, is constitutional.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 539; Dec. Dig. @=250(1), 302.]</p> <p>4. Insurance @=335(3) — Warranties — Breach — Iron Saxe Clause.</p> <p>Acts 33d Leg. c. 105. § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a), providing that no breach or violation by the insured of any of' the warranties, conditions, or provisions shall render void the policy or constitute a defense for loss unless such breach or violation contributed to bring about the destruction, refers to those warranties to be performed before the fire, and a breach of which might contribute to the-loss and did not, and does not apply to warranties requiring the insured to keep books and accounts and deliver them to the company for examination after the fire, which breach could not contribute to or occur until after th'e loss.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. @=335(3).]</p>

<p>Appeal from Nolan County Court; A. B. Yantis, Judge.</p> <p>Suit by J. S. Grisham against F. J. Neal, the International Produce Company, a partnership, and others. From an order sustaining the plea of privilege of defendant Barbee, against whom defendant Neal pleaded over, and changing the venue, defendant Neal appeals.</p>

<p>Appeal from District Court, Tarrant County ; J. W. Swayne, Judge.</p> <p>Action by Clay Robinson & Co. and others against W. H. Lee and others. Judgment for the plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Hunt County; A. P. Dolioney, Judge.</p> <p>Suit by L. W. Rutland against the Decatur Land, Loan & Abstract Company and others. From judgment for plaintiff against the defendants, entered after dismissal as to one Shannon, a defendant, the named defendant appeals.</p> <p>This was a suit for damages brought by appellee Rutland against appellant, one Shannon, and appellees W. C. Mortimer, T. B. Weathersby, J. T. Browning, and R. L. Browning, in which, after a dismissal as to Shannon, judgment was rendered in Rut-land’s favor against the other parties named for the sum of $2,118.85. The judgment against Mortimer, Weathersby, and the Brownings was by default. The appeal is by the appellant abstract company alone.</p> <p>In his original petition Rutland alleged as his cause of action that appellant and Mortimer, Weathersby, and the Brownings acted together in perpetrating a fraud on him, whereby he was induced to purchase and pay for a tract of land on the faith of its being unincumbered by liens, other than one for $1,100, whereas the land was further incumbered by a trust deed thereon made to secure a debt of $2,000, which trust deed was foreclosed against him, whereby he lost the land. 1-Ie alleged that the fraud was perpetrated by means oft an abstract of title to the land, from which mention of the trust deed was omitted. A supplemental petition filed by Rutland contained allegations as follows:</p> <p>“That if said defendant Decatur Land, Loan & Abstract Company is not guilty of the frauds and collusions to defraud as alleged in plaintiff’s original petition, then this plaintiff says it was guilty of gross negligence in making and certifying to said abstract and turning same over to the other defendants, thus enabling them to knowingly perpetrate a fraud on plaintiff as alleged in his original petition, and but for the said gross negligence of said defendant Decatur Land, Loan & Abstract Company, in thus making and certifying to said false abstract and turning same over to said other defendants, the fraud as alleged in plaintiff’s original petition would not and could not have been perpetrated on plaintiff by the other defendants as alleged in his original petition. That after said abstract was turned over to this plaintiff for the purpose of examination, plaintiff went to the expense and trouble of sending his attorney from Commerce, Texas, to Decatur, Texas, for the purpose of interviewing said abstract company as to the correctness of said abstract, and that in said interview said attorney informed said abstract company of plaintiff’s intention to purchase said lands, and that plaintiff was relying on said abstract and certificate on same for the title therein shown, said defendant Decatur Land, Loan & Abstract Company, at that time assured this plaintiff’s said attorney, that said abstract and certificate was absolutely_ correct' in every particular. That at that time in order to procure a certain release and be sure of the title to the lands as described in said abstract, plaintiff paid to said defendant Decatur Land, Loan & Abstract Company the sum of $1 in cash and offered to pay to said defendant any other sum necessary in order to be assured that said abstract was absolutely correct and the title to the lands described therein being properly shown in the abstract in every particular. That said defendant Decatur Land, Loan & Abstract Company assured the attorney of this plaintiff at that time that the title was absolutely perfectly shown in said abstract, and that said abstract was in every particular correct and true, and that thereupon after said attorney had returned to Commerce, Texas, and made report to plaintiff, as per above; plaintiff, relying on the title as shown by said abstract and certificate, completed his deal with the other defendants, and was by said other defendants acting by, with, and through the said negligence of the defendant Decatur Land, Loan & Abstract Company defrauded of his property as alleged in his original petition. And that but for the negligence of said defendant Decatur Land, Loan & Abstract Company in thus making and certifying to said false abstract and delivering the same to said other defendants, and but for the representations and assurances of said abstract company made to the attorney for plaintiff, and the false certificate attached to said abstract, and the reaffirmance of same to plaintiff’s attorney, the frauds perpetrated on plaintiff as alleged would not and could not have been done.”</p> <p>It appears from findings made by the trial court that on November 25, 1913, Mortimer and Weathersby contracted with Rutland to sell him a tract of land in Wise county. By the terms of the agreement they were to 'furnish to Rutland an abstract showing the title in them to be clear of incumbrances except the one for $1,100, which Rutland agreed to assume. At that time Mortimer and Weathers-by placed in escrow a deed they executed conveying the land to Rutland, to be delivered to him when the title was determined by him to be as represented by them. They then requested appellant, who was engaged in the business of making abstracts of title to lands in Wise county, to make an abstract covering the land they had agreed to sell to Rutland. Appellant, in making the abstract, failed to note therein the existence of the deed of trust mentioned above. When appellant delivered the abstract to Mortimer and Weathersby, they delivered it to Rutland, who had his attorney to go from Hunt county, where he resided, to Wise county, where appellant was engaged in business, “for the purpose of interviewing” appellant “as to the correctness and verification of said abstract.” The attorney “called on said abstract company,” quoting from the court’s findings, “and had it re-read and examine said abstract, and informed it, the said abstract company, that plaintiff was contemplating the purchase of said lands as described in said abstract, and had contracted to purchase same provided the title was good, and that he (the plaintiff) was relying altogether on the title as shown in said abstract, and desired to know of said abstract company if said ab-> stract was true and correct, and that said abstract company, after due examination and rereading of said abstract, and after it knew that plaintiff was intending to purchase said lands and was relying on the said abstract as to the title to said lands, reaffirmed said abstract to the said attorney of plaintiff and assured him that said abstract was absolutely correct in every particular, and that plaintiff need have no fear in relying on the title as therein shown; that said attorney then returned to his home in Commerce, Hunt county, Texas, and made a report to plaintiff as to the facts as stated above; that plaintiff through his said attorney paid to said abstract company the sum of $1 in cash to procure a certain release to some outstanding notes against the said lands and offered at that time to pay to said abstract company any other reasonable sum for the purpose of having said abstract company reaffirm and verify said abstract to said plaintiff’s attorney as being absolutely true and correct in every particular; that said abstract company, at that time, by and through its secretary and manager, R. L. Thompson, assured said attorney that said abstract was true and correct, and that he knew it was for the reason that he in person had made said abstract himself, and that plaintiff' need have no hesitancy in relying on said abstract as to the title to said lands and buying same on the title as shown by said abstract; that plaintiff did therefore rely on the title as shown in said abstract, and the said reaf-firmanee and recertifying of same and the assurances of said abstract company that same was true and correct, and thereafter closed the deal for said lands and paid the defendants Weathersby and Mortimer for same; that at the time said Mortimer and Weathersby closed said deal and accepted from plaintiff the consideration for same, they and each of them knew of the existence of the said trust deed, and that same was a valid and subsisting lien against the said lands, but that they willfully and fraudulently represented to plaintiff that said lands were clear of all debts and liens except the $1,100 which plaintiff assumed and agreed to pay; that the defendants J. T. Browning and R. L. Browning who executed the said trust deed also defrauded plaintiff hy making warranty deed to said lands and leaving out of said deed the trust deed after they had executed the same and it had been placed of record in Wise county, Texas; that plaintiff did not know of the existence of said trust deed at the time he contracted for and purchased said lands and paid the considerations for same to the said defendants Mortimer and Weathersby; that the Decatur Land, Loan & Abstract Company was guilty of negligence in making and certifying to said untrue and false abstract and in reaffirming and recertifying to same to plaintiff after it was informed that plaintiff was contemplating the purchase of said lands and was relying on the title as shown in said abstract as being true and correct;. that the said trust deed above referred to was filed for record in the office of the county clerk of said Wise county, on the 20th day of June, 1913, before the said abstract was certified to on the 1st day of December, A. D. 1913 ; that same was duly recorded in volume 29, p. 256, of the Records of Mortgages and Trust Deeds of Wise county, Texas, and was duly recorded by said clerk on the 28th day of June, A. D. 1913; that plaintiff never knew of the existence of said trust deed until some time in July, A. D. 1914, and that he had said lands taken away from him hy said trhst deed being foreclosed and the said lands sold under the terms of same; that plaintiff was therefore damaged the amount he had paid out in purchasing said lands and in getting possession of same and what he paid out on the notes he had assumed, which the court finds to be the sum of $2,118.85, and that he .was so damaged by the willful fraud and collusion to defraud of the defendants W. C. Mortimer, T. B. Weath-ersby, R. L. Browning, and J. T. Browning and the negligence of the defendant Decatur Land, Loan & Abstract Company; that but for the said negligence of the said Decatur Land, Loan & Abstract Company, as herein found, the said fraud could not have been perpetrated on plaintiff by the other defend-ánts.”</p>

M. Lively, Judge. Proceedings between J. O. Rosamond and J. C. Murff in the nature of a habeas corpus to obtain custody of a minor child. Judgment for Murff, and Rosamond appeals.

<p>Error from District Court, Shelby County; W. C. Buford, Judge.</p> <p>Action by G. S. Smith, and another against the Ivirby Lumber Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from Hunt County Court; H. O. Nor-wood, Judge.</p> <p>Action by J. Sid Arnold against the National Equitable Society of Belton. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Herman Kruegel against W. H. Williams and another. Prom a judgment for defendants, plaintiff appeals.</p>